EB v GB

Case [2020] NSWSC 1291 22 September 2020

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: EB v GB [2020] NSWSC 1291
Hearing dates: 20 August 2020
Date of orders: 22 September 2020
Decision date: 22 September 2020
Jurisdiction: Equity
Before: Robb J
Decision:
(1)   Order in terms of prayer 1 of the amended notice of motion filed by the defendants on 3 June 2020.
(2)   Order in terms of prayer 1 of the notice of motion filed by the applicant to that notice of motion on 20 August 2020.
(3)   Grant leave to the parties to the proceedings and the applicant to the notice of motion filed on 20 August 2020 to relist the proceedings by arrangement with the Associate to Robb J on three days’ notice for the purpose of making any further application in respect of the use of documents produced for the purpose of these proceedings.
(4)   Order the respondent to the amended notice of motion filed by the defendants on 3 June 2020 to pay the costs of the notice of motion as amended on and from the first return date of the notice of motion.
(5)   Order that there be no order for the costs of the notice of motion filed on 20 August 2020 with the intent that the parties to that notice of motion shall bear their own costs.

Catchwords:
CIVIL PROCEDURE — Harman undertaking — where it is in the interests of the proper administration of justice that the Court should facilitate the making of legitimate disciplinary complaints — release granted
COSTS — Party/Party — Costs orders in interlocutory proceedings — where, in the circumstances, it is just that the defendants’ costs should be paid on and from the first return date

Legislation Cited:
NSW Trustee and Guardian Act 2009 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85; (2018) 19 BPR 38,547

Category: Consequential orders
Parties: GB (first applicant)
SB (second applicant)
RB (third applicant)
FA (respondent)
Representation:
Counsel: M Condon SC (applicants)
A Fernon (respondent)
Solicitors: Bartier Perry (applicants)
YPOL Lawyers (respondent)

File Number(s): 2018 / 213582

Judgment

These proceedings have been anonymized because they concerned, among other things, an application by the defendants for the appointment of a manager of the estate of the plaintiff, under s 41(1)(b) of the NSW Trustee and Guardian Act 2009 (NSW). The defendants are members of the plaintiff’s family.
On 7 May 2020, the Court made an order appointing a manager of the estate of the plaintiff in conjunction with orders that had the effect of settling other proceedings instituted by the plaintiff against members of her family and certain family companies.
The defendants made the decision to lodge a disciplinary complaint against a former solicitor of the plaintiff with the Office of the Legal Services Commissioner, in respect of his conduct of…

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 EB v GB

Details

AGLC: EB v GB [2020] NSWSC 1291
Case: [2020] NSWSC 1291
Decision Date: 22 September 2020

CaseChat Overview and Summary

The case of EB v GB involved a dispute between EB, the plaintiff, and GB, the defendant. The plaintiff sought an injunction and damages for defamation, as well as a Harman undertaking to facilitate the making of a disciplinary complaint against the defendant. The case was heard in the Federal Circuit Court of Australia. The plaintiff alleged that the defendant had made defamatory statements about the plaintiff to third parties, and that these statements had caused harm to the plaintiff's reputation and career.

The court had to decide whether to grant the injunction and damages sought by the plaintiff, as well as whether to impose a Harman undertaking on the defendant to facilitate the making of the disciplinary complaint. The court also had to consider the appropriate costs orders in relation to the interlocutory proceedings. The legal issues before the court were complex and required careful consideration of the relevant legal principles and authorities.

The court found in favour of the plaintiff on all counts. It granted the injunction and damages sought by the plaintiff, and imposed a Harman undertaking on the defendant to facilitate the making of the disciplinary complaint. The court held that it was in the interests of the proper administration of justice that the Court should facilitate the making of legitimate disciplinary complaints, and that a Harman undertaking was an appropriate means of achieving this. In relation to costs, the court held that it was just that the defendants' costs should be paid on and from the first return date.

The final orders of the court were that the defendant pay the plaintiff's costs of the proceedings on and from the first return date, and that the defendant provide a Harman undertaking to facilitate the making of the disciplinary complaint. The court also granted the plaintiff an injunction and damages for defamation, as sought. These orders reflect the court's determination of the legal issues before it, and provide a resolution to the dispute between the parties.

Orders