Elmasri v Transport for NSW (No 2)

[2021] NSWSC 1208

Supreme Court

New South Wales

Medium Neutral Citation:

Elmasri v Transport for NSW (No 2) [2021] NSWSC 1208

Hearing dates:

16 September 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1)   The plaintiffs pay the defendant’s costs of the proceedings other than:

(a)   The defendant’s notice of motion filed 13 July 2021 seeking orders that compliance with the plaintiff’s notice to produce issued 11 July 2021 be dispensed with;

(b)   The notice of motion filed by the defendant on or about 23 June 2021 seeking the expedition of the proceedings;

(c)   The application by the defendant for orders under the Court Suppression and Non-publication Orders Act 2010.

(2)   Vary order 2 made on 25 June 2021 in relation to the notice of motion filed 23 June 2021 and order that each party pay their own costs of the motion.

(3)   Each party pay their own costs of:

(a)   The defendant’s notice of motion filed 13 July 2021 seeking orders that compliance with the plaintiff’s notice to produce issued 11 July 2021 be dispensed with; and

(b)   The application by the defendant for orders under the Court Suppression and Non-publication Orders Act 2010.

Catchwords:

COSTS – expedited hearing challenging validity of proposed acquisition notice – offers of compromise made in context of urgent hearing – whether time made available for acceptance reasonable – Calderbank letters – whether plaintiffs’ refusal was unreasonable – whether proceeding public interest litigation

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Land Acquisition (Just Terms Compensation) Act 1991

Uniform Civil Procedure Rules 2005

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Elmasri v Transport for NSW [2021] NSWSC 929

Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Oshlack v Richmond River Council (1998) 193 CLR 72

Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160

Category:

Costs

Parties:

Omar Elmasri (First Plaintiff)
Laila Elmasri (Second Plaintiff)
Transport for NSW (Defendant)

Representation:

Counsel:
S Prince SC; T Wong (Plaintiffs)
B Tronson; M Harker (Defendant)

Solicitors:
Stacks Collins Thompson (Plaintiffs)
Corrs Chambers Westgarth (Defendant)

File Number(s):

2021/169113

Judgment

1. On 26 July 2021, I dismissed these proceedings. On 29 July 2021, I published reasons for that dismissal and made orders to, inter alia, facilitate the determination of any dispute over the costs of the proceedings (Elmasri v Transport for NSW [2021] NSWSC 929; “Elmasri (No 1)”). This judgment addresses the dispute between the parties concerning the appropriate orders, if any, that should be made about costs. It should be read together with Elmasri (No 1).

2. The defendant, Transport for NSW (“Transport”), seeks orders for the payment of its costs on an indemnity basis from various dates based on three offers of compromise and Calderbank offers that it sent to the plaintiffs. Failing that, it seeks an order for costs on the ordinary basis as a consequence of its success (Uniform Civil Procedure Rules, r 42.1). The plaintiffs resisted all these forms of order and submitted that the appropriate order was that there be no order as to costs.

Basis for Expedition

3. At the outset, it is necessary to outline the circumstances that lead to the proceedings being heard and determined urgently as it is of significance to an assessment of the terms of the offers that were made and the responses.

4. The background to the proceedings is set out in Elmasri (No 1) at [2] to [7]. The order for expedited hearing of these proceedings was made following an application by Transport. It contended that, to meet the construction timetable for the M12 Motorway, notice of the compulsory acquisition of the plaintiffs’ land had to be published in the Government Gazette by 30 July 2021 (at [3]). That date was identified in an affidavit that accompanied the notice of motion seeking expedition. It was calculated by working backwards from a date for vacant possession of January 2022 using the various time periods nominated in the Land Acquisition (Just Terms Compensation) Act 1991 (the “Act”). The date was selected in a context whereby, unless publication in the Gazette occurred within 100 days of the issue of the proposed acquisition notice (“PAN”) on 19 March 2021 or such further time as could be agreed, then the PAN lapsed. To that end, on or about 23 June 2021, Transport had secured the plaintiffs’ agreement to extend the 100-day period from 17 July 2021 to 30 July 2021. [1]

   1. Page 34 of Exhibit MS-3 to the affidavit of Mark Shumsky affirmed 4 September 2021.

5. Towards the end of the proceedings, and in the context of an application made by Transport for orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of evidence concerning the various amounts and rates offered by Transport to acquire the plaintiff’s land and other land, Transport filed an affidavit of Bernard Joseph Mills dated 25 July 2021 (Elmasri (No 1) at [127] to [138]).

6. Mr Mills’ affidavit addressed, inter alia, the proposed duration of the proposed non-publication order. He said that the acquisition of the plaintiffs’ land needed to be gazetted by 30 July 2021 as it formed part of the “first package” of works to be undertaken. He also stated that it was anticipated that all the land acquisitions for the M12 would be published in the gazette “in or about June 2022” but it was “possible that delays could arise due” to various reasons including “unforeseen legal challenges”. He contended that any such order should operate until at least 30 November 2022 because the publication of the allegedly price sensitive information could affect ongoing negotiations that might take place including those after acquisition. He identified that date by reference to a timetable that involved all land acquisitions being gazetted by 30 June 2022, “a contingency for 3 months of potential delays” and a 60-day period for determinations by the Valuer General.

7. Senior Counsel for the plaintiffs, Mr Prince SC, contended that Mr Mills’ evidence was inconsistent with the basis upon which expedition was sought. In effect, he contended that Transport had imposed on the plaintiffs (and the Court) a false urgency to conduct the litigation in circumstances where it always had, at the very least, an allowance in its planning for a contingency period of three months.

8. I do not accept that contention. Both the materials relied on to seek expedition and Mr Mills’ affidavit distinguished between the land in the first “package” of works for the M12 and other land to be acquired. The material stated that the plaintiffs’ land was part of the former and it had to be acquired by 30 July 2021 to meet the construction timetable. The entire point of Mr Mills’ affidavit was the potentially adverse effect on other acquisitions of the publication of allegedly price sensitive information disclosed in these proceedings.

9. That said, having read Mr Mill’s affidavit, I do not accept that there was not at least some scope to further extend the time for the determination of these proceedings beyond 30 July 2021. This is especially so when, at the resumed hearing on 16 July 2021, the hearing fixed for that day was adjourned because of difficulties in accessing documents and the late provision of an affidavit by Transport (Elmasri (No 1) at [4]). The date of 23 July 2021 was then fixed to suit counsel for Transport. The adjournment to 23 July 2021 necessitated the completion of the hearing on that day with Senior Counsel for the plaintiffs accepting a time limit on his cross-examination of Transport’s only witness. During the debate on 16 July 2021 about how to accommodate the various parties’ interests, there was no suggestion from Transport about agreeing with the plaintiffs to further extend the operation of the PAN even for a very short period.

10. As will become clear, the significance of this to any adjudication between the various proposed costs orders is that the conduct of the parties, including the various offers, must be considered in the context of the expedition forced on the plaintiff by Transport.

Transport’s First Offer

11. At 10.50pm on 8 July 2021, Transport’s solicitor sent to the plaintiffs’ solicitors an email attaching a document entitled “offer of compromise”. It sought to resolve the proceedings by having the plaintiffs’ summons dismissed with no order as to costs (the “First Offer”). [2] The First Offer was expressed to be open for acceptance until 10.00am on (Monday) 12 July 2021. Accompanying that document was a letter from Transport’s solicitors headed “Without prejudice except as to costs”. The letter stated that, if the offer recorded in the offer of compromise was held not to comply with the requirements of UCPR 20.26, then the offer and letter were made in accordance “with the principles in Calderbank v Calderbank [1976] Fam 93”. [3] The balance of the letter extolled the virtues of Transport’s case at length. It reflected many of the various points put forward by Transport at the hearing some of which were accepted and others which were rejected in Elmasri (No 1). This offer was also said to be open until 10.00am on 12 July 2021.

    2. Page 21 of the affidavit of Louise Kathleen Camenzuli sworn 12 August 2021 (the “first Camenzuli affidavit”).

    3. Page 22 of the affidavit of the first Camenzuli affidavit.

12. As at the time the First Offer was made, the hearing was listed to commence on Tuesday 13 July 2021. At around 7.00pm on the evening prior to the First Offer, Transport had made some documents available to the plaintiffs in response to a notice to produce. Transport served its only witness’s affidavit at 7.47pm on that day, being around three hours prior to sending the First Offer. The affidavit was due on 6 July 2021. There were further emails about the production of documents over the weekend of 10 and 11 July 2021. The parties’ valuers met throughout Sunday 11 July 2021 in an effort to reach an agreed figure but were unable to. At around 1.00pm on 11 July 2021, the plaintiffs sent a notice to produce to Transport returnable at the hearing on 13 July 2021.

13. Just after 8.00pm on 11 July 2021, the plaintiffs’ solicitors emailed Transport’s solicitor requesting that the time to respond to the First Offer be extended from 10.00am on 12 July 2021 to 5.00pm on the same day. [4] This request was rejected at 9.56am the following morning. [5] No explanation was proffered for the rejection. An hour later, the plaintiffs’ solicitors responded putting their own offer, one component of which was the acquisition of their clients’ property for $7.5million less around $300,000 for remediation costs. [6] Later that day he sent a detailed response to the matters set out in Transport’s Calderbank letter. [7]

    4. Page 85, Exhibit MS-3 to the affidavit of Mark Shumsky affirmed 4 September 2021.

    5. Page 86, Exhibit MS 3.

    6. Page 90, Exhibit MS 3.

    7. Pages 93 to 95, Exhibit MS 3.

14. An offer of compromise under UCPR 20.26 must specify the period of time within which the offer is open for acceptance (UCPR 20.26(2)(f)). Where the offer is made within two months of the hearing date, then the closing date for the acceptance of the offer “is to be such date as is reasonable in the circumstances” (UCPR 20.26(5)(b)). The onus of demonstrating the reasonableness of the date is on the offeror; ie Transport (Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 at [23]; “Kooee”). Further, in Kooee, when considering whether an offer that was open for around 23 hours just prior to a trial was reasonable in the circumstances, it was observed that (at [20]):

“In considering whether the time allowed for acceptance is “reasonable in all the circumstances” once a trial commences, or indeed final preparation commences, three factors come into play. The first is that both parties may reasonably be expected to have a clear perception of the strengths and weaknesses of their positions, so that the reasonableness of a particular offer may be speedily assessed. Secondly, because significant costs will be accruing on a daily, even an hourly basis, there is a heightened incentive to respond within the time permitted. Thirdly, and counterbalancing the first factor, the need to address the terms of an offer, provide advice and obtain instructions will often be a significant distraction from final preparation.”

15. In this case the interplay between the first and third factors is significantly affected by the fact that the hearing was expedited at the instigation of Transport in the circumstances noted above. Contrary to the position with many cases that are just about to be heard, that meant that an assessment of the relative strengths and weaknesses of the plaintiff’s case as at the time of the offer was especially difficult to undertake. At the time the First Offer was received, Transport’s affidavit had only just been received and documents were still being received and sought. Moreover, in relation to the third factor identified in the above extract, the expedition of the proceedings meant that, throughout the time the offer was open, preparing for the hearing was of the highest priority. The fact that the plaintiffs’ resources were directed to preparation for the hearing and otherwise seeking to settle the proceedings by way of resolving the overall dispute about acquisition price is borne out by the (reasonable) request to extend the time in which the offer was open, which was refused.

16. The end result is that Transport has not satisfied me that the time allowed for the acceptance or rejection of its First Offer was reasonable in all the circumstances. It follows that the offer made did not conform with UCPR 20.26. Thus, the costs provisions in UCPR 42.15A are not engaged.

17. As noted, in the event that it was not accepted that the First Offer satisfied UCPR 20.26, Transport sought to rely on the letter sent on the same day as a Calderbank offer and thus as a basis for ordering costs on an indemnity basis. The two most significant criteria in determining whether to order indemnity costs on the basis of the rejection of a Calderbank offer that was not exceeded at the trial, are whether the offer was genuine and whether it was unreasonable for the offeree not to accept it (Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [8]; “Miwa”; Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160).

18. In relation to whether the offer was genuine, at one level the offer involved a complete capitulation on the part of the plaintiffs. The plaintiff’s approach to settlement prior to the hearing and in its submissions on costs was to seek to tie its challenge to the validity of the PAN to its attempt to secure a higher offer for the acquisition of its land. That was a reasonable approach, however so far as the proceedings were concerned it was not the Court’s function to assess the true value of the land and the only relief obtainable in the proceedings was effectively binary; either the PAN was set aside or not. Given that by 8 July 2021 Transport had clearly incurred significant costs, I am satisfied that the First Offer was a genuine offer of compromise (Miwa at [9]).

19. However, I am also not satisfied that it was unreasonable for the plaintiffs not to accept the First Offer. At the risk of repetition, as a result of Transport’s application, the plaintiffs were both attempting to prepare a hearing urgently and had not yet been put in a position to be able to fairly assess their prospects of success. To the extent that they could make some assessment the judgment in Elmasri (No 1) vindicates some of their complaints. Otherwise, the plaintiffs endeavoured to facilitate a resolution of the overall dispute by the valuers and when that failed, they sought more time to consider the offer which was refused. In these circumstances, Transport has failed to establish that their refusal to accept the First Offer was unreasonable (Miwa at [17]).

Transport’s Second Offer

20. At 5.59pm on 14 July 2021, Transport’s solicitors sent to the plaintiffs’ solicitors an email attaching another document entitled “Offer of Compromise” in the same terms as the First Offer except that the offer was expressed to remain open until 5.00pm on 15 July 2021 [8] (the “Second Offer”). It was accompanied by another Calderbank letter offering the same terms and pointing out the “fundamental flaws” in the plaintiffs’ case. [9]

    8. Page 48 of the first Camenzuli affidavit.

    9. Page 44 of the first Camenzuli affidavit.

21. These letters were sent the day after the hearing of the proceedings was adjourned to 16 July 2021. The adjournment on 13 July 2021 arose in circumstances where I rejected Transport’s application to set aside the notice to produce requiring it to produce documents that was issued on 11 July 2021. Some 20 to 30 minutes prior to sending the Second Offer, Transport’s solicitors had commenced producing documents under that notice to produce. Throughout the following day the plaintiffs’ solicitors experienced difficulty in accessing those documents. [10] Further, on 15 July 2021 while the Second Offer was still open and without notice or leave, Transport served a further affidavit from its only witness, Ms Enwiya. [11] The difficulties caused by gaining access to the documents and the service of the further affidavit were the basis for the further adjournment that was granted on 16 July 2021.

    10. Affidavit of Mark Shumsky affirmed 4 September 2021 at [44].

    11. Affidavit of Mark Shumsky affirmed 4 September 2021 at [45].

22. In these circumstances, the findings I have made about the First Offer and its associated Calderbank letter apply with equal force to the Second Offer and its associated Calderbank letter.

Transport’s Third Offer

23. At 6.29pm on 19 July 2021, Transport’s solicitor sent to the plaintiffs’ solicitors an email attaching another document entitled “Offer of Compromise” in the same terms as the First and Second Offers except that the offer was expressed to remain open until 5.00pm on 20 July 2021 [12] (the “Third Offer”). It was accompanied by another Calderbank letter offering the same terms and referring to the previous letters pointing out the alleged flaws in the plaintiffs’ case. [13] Just prior to the 22 and half hour period allowed for acceptance of this offer, the plaintiffs’ solicitors responded rejecting the offer. [14] Again disputation about the production of documents by Transport continued throughout the time of this offer up until the resumed hearing on 23 July 2021. [15]

    12. Page 53 of the first Camenzuli affidavit.

    13. Pages 51 to 52 of the first Camenzuli affidavit.

    14. Affidavit of Mark Shumsky affirmed 4 September 2021 at [50].

    15. Affidavit of Mark Shumsky affirmed 4 September 2021 at [49] to [58].

24. Although by 19 July 2021 the plaintiffs were in a much better position to assess their prospects of success, I am nevertheless unsatisfied that just under 23 hours was reasonable in the circumstances for the purposes of UCPR 26.26(5)(b). For the reasons already stated I am also not satisfied that it was unreasonable to refuse Transport’s Third Offer.

Other Bases for Costs Orders

25. Leaving aside the three offers, the starting point for determining the appropriate costs order is that Transport was successful and, unless it appears to the court that some other order should be made, it should recover its costs of the proceedings on the ordinary (or party party) basis (UCPR 42.1; 42.2). The parties’ submissions raised various issues that arguably warrant departure from that starting point being, in the case of Transport, an award of costs on some different basis and, in the case of the plaintiffs, no order for costs at all.

25. Transport contended that its claim for indemnity costs was enhanced by the plaintiff’s conduct of the proceedings. In particular it contended that the primary cause of the adjournments on 13 and 16 July 2021 was the notice to produce issued on 11 July 2021 and the difficulties in searching and producing documents in response. It was submitted that most of this material related to a complaint of differential treatment by Transport towards the acquisition of the plaintiff’s property compared to neighbouring properties which it was said was “at best faintly pressed”. [16] Transport also contended that the plaintiff’s delayed commencing the proceedings in that they received the PAN on 19 March 2021 but did not file their summons until 11 June 2021 or serve it until 16 June 2021 and did not seek interlocutory relief. It was effectively contended that this delay necessitated Transport’s application for expedition.

    16. Transport’s submissions on costs dated 12 August 2021 at [12].

26. I do not accept either criticism. As set out in Elmasri (No 1) at [88] to [99] throughout the period from the issue of the PAN until the commencement of the proceedings and afterwards the plaintiffs were pursuing attempts to resolve the acquisition of their land for a price suitable to them. They commenced the proceedings on the same day that the valuers were met (at [96]). If anything, they might have been seen as commencing prematurely not too late. The letter serving the summons sought an assurance that the PAN would not be gazetted before their resolution. After the proceedings were commenced, they did not oppose expedition and, as noted in Elmasri (No 1) at [4], co-operated in their speedy resolution including agreeing to Transport’s proposed extension. As for the complaints about the access to documents, the documents sought related to both the complaint about differential treatment and the consideration given by Transport to a comparable sale at 4 Turnbull Avenue. Complaints about both were taken up at the final hearing (Elmasri (No 1) at [115] and [127]). The approach Transport took to the comparable sale was not too its credit (Elmasri (No 1) at [115]). Otherwise, the receipt and processing of notices to produce issued just prior to a hearing is often the price paid by a party who seeks expedition especially a litigant who has the most control over the time by which the litigation must be determined by, as Transport did in this case.

27. In their written submissions, the plaintiffs referred to the various offers they made to Transport throughout the proceedings to settle all of which included agreement over a particular acquisition price for their land. [17] In particular they noted that on 12 July 2021 the plaintiffs made an offer that included an acquisition price of $7.5million less a deduction for remediation costs of $355,610.00 and that after judgment Transport made an offer of just under $6.2million with no deduction for remediation costs. The plaintiffs submitted that there was no explanation for why that offer was not put before them earlier and it was suggested that, if it had, the parties might have settled earlier. [18] The difficulty with submissions pitched around the underlying dispute about the appropriate acquisition price is that the price was not the (legal) subject matter of the proceedings. This meant that the Court has no “event”, in the form of a judicial determination of the ultimate purchase price, upon which to base a determination of the appropriate costs order (cf UCPR 42.1).

    17. Plaintiff’s written submissions on costs filed 4 September 2021 at [22] to [24].

    18. Plaintiff’s written submissions on costs filed 4 September 2021 at [24].

28. In arguing for no order as to costs, the plaintiffs’ submissions appeared to characterise these proceedings as akin to public interest litigation especially as it was said to raise significant issues as to the interpretation of the Land Acquisition (Just Terms Compensation) Act 1991 (citing Oshlack v Richmond River Council (1998) 193 CLR 72 at [49] per Gaudron and Gummow JJ and at [144] per Kirby J). While it can be accepted that some of the findings in Elmasri (No 1) may have implications for other acquisitions (eg, Elmasri (No 1) at [19] and [28]), this was not litigation over either public rights or which sought to vindicate the interests of a wider group of persons. Instead, it was litigation directed to vindicating the private rights of the plaintiffs, albeit important rights (cf Oshlack at [49]).

29. In oral argument, Senior Counsel for the plaintiff, Mr Prince SC, referred to the differential success that the parties experienced on particular issues such as the rejection of Transport’s argument concerning the appropriate period to assess the genuineness of its attempts to negotiate (Elmasri (No 1) at [18]). I have considered that submission closely as well as the overall findings which were not a ringing endorsement of Transport’s dealings with the plaintiffs (Elmasri (No 1) at [122] to [124]). However, in the end result and subject to considering the particular matters noted below, I do not accept that this is a matter in which success or failure on sub issues of fact and law can be weighed up so as to warrant a departure from the usual approach as to costs. Instead, in this case, there is only one “event” namely the success or failure of the attack on the legal validity of the PAN. Transport succeeded and should have its costs.

30. In addition, the plaintiffs’ written submissions sought to carve out from any costs order particular aspects of the defendant’s costs. First it sought to carve out the costs necessitated by Transport serving evidence after the time allowed for service of its evidence, namely 6 July 2021. I will not take that course. The extra two days to serve Ms Enwiya’s affidavit of 8 July 2021 did not of itself impact the proceedings and the affidavit of 15 July 2021 was necessitated at least in part by further issues being raised by the plaintiffs.

31. Second, it was contended that the defendant’s costs incurred from 19 July 2021 onwards should be disallowed because there was apparently some “exponential increase” in the amount of its costs after that time. I will not take that course either. The determination of the amount of costs that were reasonable will be a matter for the costs assessor.

32. Third, the submissions sought to carve out the costs of the unsuccessful motion to set aside the notice to produce and then the result of the “unreasonable refusal to promptly provide the documents sought” including drafts of Mr Maher’s valuation reports. I accept that Transport should not have its costs of its notice of motion seeking to set aside the notice to produce. However, it should have its costs of complying with the notice it sought to set aside.

33. Fourth, the submissions sought to carve out the costs incurred by Transport’s decision to withhold certain town planning advice on the basis that it was privileged and then waive privileged on the eve of the hearing on 23 July 2021. [19] I cannot envisage how any such costs would be calculated. Further, in the absence of a determination that there was no basis for the privilege claim, I do not understand how this can affect the discretion to award costs.

    19. Plaintiffs written submissions on costs dated 4 September 2021 at [25(d)].

34. Fifth, the plaintiffs’ submissions sought to carve out the costs incurred by Transport’s motion for expedition “given the material non-disclosure to the Court as to the defendant’s actual internal timeframe”. [20] I do not accept that there was any such non-disclosure. However, given that expedition was sought to meet its own construction timetable then I accept that the plaintiffs should not have to wear the costs of the application. I reject Transport’s submissions to the contrary. [21] In that regard I note that the Registrar ordered that the costs of that motion be costs in the cause. I will vary that order accordingly.

    20. Plaintiffs written submissions on costs dated 4 September 2021 at [25(e)].

    21. Defendant’s written submissions on costs dated 10 September 2022 at [16].

35. Sixth, the plaintiffs’ submissions sought to carve out the costs of the defendant’s application for orders under the Court Suppression and Non-publication Orders Act 2010 as those costs would have supposedly been incurred in any event (Elmasri (No 1) at [127] to [137]). Contrary to Transport’s submissions,[22] I agree that they should be carved out but not for the reason suggested by the plaintiffs. To the extent that the application concerned information relating to the acquisition of the plaintiffs’ property it was unsuccessful (Elmasri (No 1) at [132] to [133]). To the extent that it concerned other land, the application was directed to vindicate Transport’s interests beyond those in issue in this litigation.

    22. Defendant’s written submissions on costs dated 10 September 2022 at [16].

Orders

37. Accordingly, the Court orders that:

1. The plaintiffs pay the defendant’s costs of the proceedings other than:

   1. The defendant’s notice of motion filed 13 July 2021 seeking orders that compliance with the plaintiff’s notice to produce issued 11 July 2021 be dispensed with;

   2. The notice of motion filed by the defendant on or about 23 June 2021 seeking the expedition of the proceedings;

   3. The application by the defendant for orders under the Court Suppression and Non-publication Orders Act 2010.

   1. Vary order 2 made on 25 June 2021 in relation to the notice of motion filed 23 June 2021 and order that each party pay their own costs of the motion.

   2. Each party pay their own costs of:

   1. The defendant’s notice of motion filed 13 July 2021 seeking orders that compliance with the plaintiff’s notice to produce issued 11 July 2021 be dispensed with; and

   2. The application by the defendant for orders under the Court Suppression and Non-publication Orders Act 2010.

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Endnotes

Decision last updated: 24 September 2021