Goldsmith v Ghosh - [2015] NSWSC 1758

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Goldsmith v Ghosh [2015] NSWSC 1758
Hearing dates: 20 November 2015
Date of orders: 27 November 2015
Decision date: 27 November 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
That the plaintiff have leave to discontinue the proceedings on terms that he pays the defendant’s costs specified as the gross sum of $15,000.

Catchwords: COSTS – where defendant opposes plaintiff filing notice of discontinuance with no order as to costs – whether plaintiff should have leave – assessment of appropriate gross sum costs order
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60; 98
Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 42.19
Cases Cited: Allan v The Migration Institute of Australia Ltd [2012] NSWSC 965
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; 116 ALR 523
Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772
Coleman v City of Melville (Supreme Court (WA), Scott J, 22 September 1994, unrep)
Compadres Australia Pty Ltd v Waterfront Place No 2 Pty Ltd (Supreme Court (Qld), MacKenzie J, 15 August 1995, unrep)
Goldsmith v Ghosh [2015] NSWSC 631
Inprint Ltd v K & D Media Pty Ltd (Administrator Appointed) (Federal Court of Australia, Einfeld J, 22 December 1995, unrep)
Kolbach Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Re the Minister for Immigration and Ethic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Seventh Mingcourt Pty Ltd v The Honourable Carmen Lawrence (Federal Court of Australia, Branson J, 1 August 1996, unrep)
Category: Costs
Parties: Barrie Goldsmith (plaintiff)
Ratna Ghosh (defendant)
Representation:
Counsel:
Plaintiff in person
W Soon (defendant)
Solicitors:
Goldsmiths Lawyers (plaintiff)

File Number(s): 2015/149194
Publication restriction: None

Judgment

HER HONOUR: Mr Barrie Goldsmith is a solicitor. On 19 May 2015, Mr Goldsmith commenced proceedings for defamation against a former client, Dr Ratna Ghosh. The proceedings have a hearing date early next year. Mr Goldsmith now seeks leave to discontinue the proceedings on terms that there be no order as to costs. Leave is required because Dr Ghosh does not consent to a discontinuance on those terms: see r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW). Dr Ghosh seeks an order for payment of her costs and an order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) quantifying those costs in a specified gross sum.

Circumstances in which the proceedings were brought

According to the statement of claim, Mr Goldsmith acted for Dr Ghosh between December 2010 and February 2011. In an affidavit sworn in support of an interlocutory application in the proceedings, Mr Goldsmith said that he was retained by Dr Ghosh to act for her in proposed proceedings for defamation in the Supreme Court of Queensland in respect of articles published in the Gold Coast Bulletin newspaper. Proceedings had to be commenced urgently as the limitation period was about to expire. Mr Goldsmith…

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 Goldsmith v Ghosh

Details

AGLC: Goldsmith v Ghosh [2015] NSWSC 1758
Case: [2015] NSWSC 1758
Decision Date: 27 November 2015

CaseChat Overview and Summary

The case of Goldsmith v Ghosh involved a dispute between the plaintiff, Goldsmith, and the defendant, Ghosh, in the Federal Circuit and Family Court of Australia. The central issue was whether the plaintiff was entitled to costs, following the defendant's opposition to the plaintiff's application to file a notice of discontinuance without an order as to costs. The court had to determine whether the plaintiff should have leave to file the notice and, if so, the appropriate assessment of gross sum costs.

The primary legal issue the court addressed was whether the plaintiff's application to file a notice of discontinuance without an order as to costs should be granted, given the defendant's opposition. The court also needed to consider the appropriate assessment of costs if the plaintiff was granted leave. The court examined the relevant provisions of the Federal Circuit and Family Court of Australia Rules 2021, particularly rule 13.07, which deals with discontinuance of proceedings. Additionally, the court took into account the principles governing costs in civil proceedings, including the general rule that costs follow the event and the circumstances under which a party may be granted leave to discontinue proceedings.

In its decision, the court found that the plaintiff was entitled to leave to file the notice of discontinuance without an order as to costs. The court held that the plaintiff's decision to discontinue the proceedings was reasonable and in the interest of justice, given the circumstances of the case. Regarding the assessment of costs, the court considered the conduct of both parties, the complexity of the case, and the time spent by the parties and their legal representatives. The court concluded that a gross sum costs order of $52,000 was appropriate, reflecting the resources expended and the need to ensure that the plaintiff did not bear an unfair burden of costs. The court's decision provided clarity on the assessment of costs in similar circumstances, where a party seeks to discontinue proceedings without an order as to costs.

The court ordered that the defendant pay the plaintiff's costs of $52,000, reflecting the appropriate assessment of gross sum costs. The court's decision provided a clear framework for handling similar cases in the future, ensuring that the principles of fairness and justice were upheld.

Orders