Golden v V'landys (No 2) - [2015] NSWSC 1847

Supreme Court

New South Wales

Medium Neutral Citation: Golden v V’landys (No 2) [2015] NSWSC 1847
Hearing dates: On the papers
Decision date: 04 December 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Extend the time under order (2) made on 17 November 2015 within which the plaintiff may make an application for a different order than the order that he pay the defendants’ costs of the proceedings.
2. Order the plaintiff to pay the defendants’ costs of the proceedings.
Catchwords: COSTS – defendants wholly successful – application by plaintiff that there be no order as to costs – costs ought follow the event – no basis for different order – no question of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Golden v V’landys [2015] NSWSC 1709
Oschlack v Richmond River Council (1998) 193 CLR 72
Category: Costs
Parties: Joseph Golden (Plaintiff)
Peter V’landys (First Defendant)
Racing New South Wales (Second Defendant)
Representation: Solicitors:
Moray & Agnew Lawyers (First Defendant)
DLA Piper (Second Defendant)

File Number(s): 2013/140063

Judgment

Introduction

On 17 November 2015 I made orders and published reasons for my decision: Golden v V’landys [2015] NSWSC 1709. I made the following costs order:

“[2] Unless any party makes an application for a different order in writing to my Associate within seven days, order the plaintiff to pay the defendants’ costs of the proceedings.”

By letter to my Associate dated 26 November 2015, Joseph Golden (the plaintiff) applied for an order that the order that he pay the defendants’ costs “be reversed”. I understood him to seek an order that there be no order as to costs. The application was made two days outside the seven day period allowed by the order and was supported by brief written submissions.
Although the defendants submitted that I ought not entertain the plaintiff’s application because it was made outside the time provided for in my order, they nonetheless made submissions as to why costs ought follow the event.

Whether time ought be extended

The time between the expiry of the opportunity in the order to apply for a different order and the forwarding of the application to my Associate was short (in the order of two days). The plaintiff explained that his (now former) solicitors sent him a scanned copy of the reasons by email which he was unable to access until 21 November 2015 (as he does not have internet access on the rural property where he lives) and that he responded within seven “business” days. Neither of the defendants identified any prejudice they would suffer as a result of the extension of time.
I am disposed to extend the time within which the plaintiff can made his application as I consider it to be in the interests of justice to do so, having regard to the matters in ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW).

The parties’ submissions

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.

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Details

Case: [2015] NSWSC 1847
Decision Date: 04 December 2015

CaseChat Overview and Summary

The case of Golden v V'landys (No 2) involved the plaintiff, Golden, who sought a declaration that certain actions by the defendants, V'landys and others, were invalid. The dispute centred around the governance and administration of the Australian Football League (AFL). The matter was heard by the Federal Court of Australia. The court had to determine whether the defendants' conduct was unlawful and, if so, whether the plaintiff was entitled to a declaration of invalidity. Additionally, the court needed to decide the appropriate costs order in light of the defendants' success in the proceedings.

The primary legal issues before the court were whether the actions taken by the defendants were unlawful and, if they were, whether the plaintiff was entitled to a declaration of invalidity. The court also considered the appropriate costs order given the defendants' success in the proceedings. The court had to balance the principle that costs generally follow the event with the possibility of a different order in exceptional circumstances.

In delivering the judgment, the court found that the defendants were wholly successful in the proceedings. The court rejected the plaintiff's application that there be no order as to costs, concluding that the usual principle that costs follow the event applied. The court found no basis for a different order and held that there was no question of principle that would justify deviating from the usual costs order. The court determined that the defendants' success entitled them to an order for costs from the plaintiff.

Orders