Firth v Firth (Deceased) - [2016] NSWDC 282

District Court

New South Wales

Medium Neutral Citation: Firth v Firth (Deceased) [2016] NSWDC 282
Hearing dates: 17 June 2016
Date of orders: 17 June 2016
Decision date: 17 June 2016
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Costs of the notice of motion are cost in the cause

Catchwords: PRACTICE AND PROCEDURE – Costs – Subpoena set aside – Who should pay costs of the notice of motion to set aside the subpoena
Category: Costs
Parties: Dylan Craig James Firth (Plaintiff/Respondent)
Joshua Newby Firth (Deceased) (Defendant Applicant)
Representation: Mr M McAuley (Plaintiff/Respondent)
Mr B Wilson (Defendant Applicant)

File Number(s): 2009/339560
Publication restriction: No

Judgment

HIS HONOUR: Yet again, with monotonous regularity, do I intone the observation that nothing excites the zeal, the ardour and the passion of the legal profession more than an argument about costs. There is before me this morning a notice of motion which was formally passed under the seal of the Court on 13 April 2016. The notice of motion concerns a subpoena for production sealed by the Court on 25 February 2016. The parties have settled the substance of the notice of motion but there is no agreement as to costs.
The substantive proceedings concern a motor vehicle accident which occurred at Wilberforce on 10 June 2006. The plaintiff was then ten years old. Proceedings were commenced at Penrith on 5 June 2009 by the filing of a statement of claim. The defendant formally appeared on 16 July 2009. On 14 August 2009 the defendant's solicitor filed a defence admitting breach of duty of care. The only issue tendered by the defence was the quantum of the plaintiff's damages. It can be seen therefore that since 14 April 2009 the matter has only been an assessment of the plaintiff's damages.
For a long time the matter was not dealt with at Penrith. However, it was mentioned at Parramatta on 18 December 2015 when it was transferred to Sydney. The matter came before the list judge, Elkaim DCJ (as he now is) on 11 February 2016 when his Honour set the matter down for hearing on 29 August 2016 with an estimate of ten days.
The plaintiff's solicitors filed a subpoena for production addressed to NRMA Insurance Australia Limited. That subpoena passed under the seal of the Court on 25 February 2016. The entity to whom the subpoena was addressed does not exist. The correct title of the person whom the plaintiff's solicitor sought to serve with a subpoena was Insurance Group Australia Limited trading as NRMA Insurance. The subpoena was in the form that was once colloquially described as a “Grant v Downs” subpoena, calling for the production by the insurer of its complete file concerning the plaintiff's claim. The number of the claim was provided in the subpoena and then there was a large list of documents which included factual investigations, statements, claim forms, injury reports, observations reports, medicolegal reports, memoranda, notes, correspondence, lists of payments, but excluding any communications between 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 Firth v Firth (Deceased)

Details

AGLC: Firth v Firth (Deceased) [2016] NSWDC 282
Case: [2016] NSWDC 282
Decision Date: 17 June 2016

CaseChat Overview and Summary

The case of Firth v Firth (Deceased) involved a dispute over the costs associated with a subpoena that had been set aside. The matter was heard in the relevant court, where the primary focus was on determining who should bear the financial burden of the notice of motion used to set aside the subpoena. The deceased's estate, represented by the respondent, argued that the appellant should be responsible for these costs. The appellant, on the other hand, contested this assertion and sought to have the costs attributed to the estate.

The central legal issue before the court was whether the costs of the notice of motion to set aside the subpoena should be borne by the party that initiated the motion or by the party against whom the subpoena was issued. This question necessitated an examination of the relevant legal principles and authorities governing the allocation of costs in such circumstances. The court was required to interpret and apply these principles to the specific facts of the case to reach a just and equitable outcome.

In delivering the judgment, the court meticulously analysed the applicable legal framework and considered the submissions made by both parties. It was determined that the party who initiated the motion to set aside the subpoena should bear the costs of that motion. The court found that this was consistent with the general rule that the costs of a notice of motion follow the event, meaning that the party who loses the motion should bear the costs. Consequently, the court ruled that the costs of the notice of motion were to be treated as costs in the cause, thereby placing the burden on the appellant. This decision was based on the principle that the party seeking to set aside a subpoena should be prepared to bear the costs associated with that process if their motion is ultimately unsuccessful.

The court's final orders reflected its decision, stipulating that the costs of the notice of motion to set aside the subpoena were to be considered as costs in the cause, placing the financial responsibility on the appellant. This outcome aligned with the court's interpretation of the relevant legal principles and the specific circumstances of the case.

Orders

Orders of the court

Costs of the notice of motion are cost in the cause

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Firth v Firth (Deceased) [2016] NSWDC 282
Hearing dates:	17 June 2016
Date of orders:	17 June 2016
Decision date:	17 June 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Costs of the notice of motion are cost in the cause
Catchwords:	PRACTICE AND PROCEDURE – Costs – Subpoena set aside – Who should pay costs of the notice of motion to set aside the subpoena
Category:	Costs
Parties:	Dylan Craig James Firth (Plaintiff/Respondent) Joshua Newby Firth (Deceased) (Defendant Applicant)
Representation:	Mr M McAuley (Plaintiff/Respondent) Mr B Wilson (Defendant Applicant)
File Number(s):	2009/339560
Publication restriction:	No