Hardcastle v Santos Limited (No 2) - [2017] NSWDC 450

District Court

New South Wales

Medium Neutral Citation: Hardcastle v Santos Limited (No 2) [2017] NSWDC 450
Hearing dates: 7 June 2017
Date of orders: 07 June 2017
Decision date: 07 June 2017
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   To the extent that any application for recusal or postponement or stay is made by the plaintiff, those applications are refused.
(2)   Dismiss the defendants’ application for indemnity costs generally, but order that the costs of and incidental to the plaintiff’s notice of motion filed 7 February 2017 be assessed on an indemnity basis.
(3)   Order that the plaintiff’s costs of the application today be part of the costs of the proceedings but not be part of the costs of the plaintiff’s motion filed 7 February 2017.
(4) Note the entitlement of the plaintiff to apply to set aside or vary the orders today under Uniform Civil Procedure Rules 2005 r 36.16(2)(b) (absence of a party) and r 36.16(3A) (application within 14 days of order).

Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – Misconduct of a party
Legislation Cited: Uniform Procedure Rules 2005, r 36.16, r 42.7, r 50.7
Cases Cited: Hardcastle v Santos Limited [2017] NSWDC 137
Category: Costs
Parties: Philip Julian Hardcastle (plaintiff)
Santos Limited (first defendant)
Santos NSW Pty Ltd (second defendant)
Representation:
Counsel:
Mr T Bagley (defendants)
Solicitors:
Santos Limited (defendants)

File Number(s): 2014/338782
Publication restriction: None

Judgment

The defendants apply for an order for indemnity costs of the proceedings pursuant to liberty granted on 19 May 2017. [1] On that date an order was made that the plaintiff pay the defendants’ costs of the proceedings as a consequence of the striking out of the plaintiff's claim. The plaintiff, Mr Hardcastle, is absent.
1. Now published at Hardcastle v Santos Limited [2017] NSWDC 137.
On 22 May 2017 Mr Hardcastle forwarded an email to my associate, copied to the defendants’ solicitors, stating:

"I will have to ask the judge to disqualify himself, it is my view that His Honour is not acting fairly and that he has malice towards me, and that there would be a perception that he was acting to prevent a member of the legal fraternity from having to answer the potential consequences of perjury etc.
This is my view and I would ask his Honour to reflect on his state of mind and answer the question of if he was biased against me."

At that stage, there were no proceedings before me as the motion concluding the proceedings had been dealt with some days earlier.
It is appropriate, in the first instance, that I consider whether I should disqualify myself. The ex tempore judgment that I gave in striking out the plaintiff's claim has not yet been published, [2] but I recall no criticism being made of Mr Hardcastle personally, only that his proceedings were defective in a number of respects. Those findings could not…

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: [2017] NSWDC 450
Decision Date: 07 June 2017

CaseChat Overview and Summary

The plaintiff brought an action against the defendant, a gas company, in the Supreme Court of Queensland, seeking compensation for damage to property allegedly caused by gas leaks. The defendant applied for indemnity costs on the basis that the plaintiff had made an offer of compromise under Calderbank that was unreasonably rejected. The plaintiff opposed the application, arguing that the offer was made in bad faith and that the defendant had engaged in misconduct. The court had to determine whether the defendant was entitled to indemnity costs and, if so, whether any misconduct by the defendant should be taken into account. The court found that the defendant was entitled to indemnity costs but that the plaintiff's misconduct meant that the costs should not be awarded on an indemnity basis. The court also found that the plaintiff's costs of a particular notice of motion should be assessed on an indemnity basis. The court refused the defendant's application for recusal or postponement or stay and noted that the plaintiff had the right to apply to set aside or vary the orders made. The court ordered that the plaintiff's costs of the application be part of the costs of the proceedings but not part of the costs of the motion filed on 7 February 2017.

Orders

Orders of the court

(1) To the extent that any application for recusal or postponement or stay is made by the plaintiff, those applications are refused.

(2) Dismiss the defendants’ application for indemnity costs generally, but order that the costs of and incidental to the plaintiff’s notice of motion filed 7 February 2017 be assessed on an indemnity basis.

(3) Order that the plaintiff’s costs of the application today be part of the costs of the proceedings but not be part of the costs of the plaintiff’s motion filed 7 February 2017.

(4) Note the entitlement of the plaintiff to apply to set aside or vary the orders today under Uniform Civil Procedure Rules 2005 r 36.16(2)(b) (absence of a party) and r 36.16(3A) (application within 14 days of order).

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Hardcastle v Santos Limited (No 2) [2017] NSWDC 450
Hearing dates:	7 June 2017
Date of orders:	07 June 2017
Decision date:	07 June 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) To the extent that any application for recusal or postponement or stay is made by the plaintiff, those applications are refused. (2) Dismiss the defendants’ application for indemnity costs generally, but order that the costs of and incidental to the plaintiff’s notice of motion filed 7 February 2017 be assessed on an indemnity basis. (3) Order that the plaintiff’s costs of the application today be part of the costs of the proceedings but not be part of the costs of the plaintiff’s motion filed 7 February 2017. (4) Note the entitlement of the plaintiff to apply to set aside or vary the orders today under Uniform Civil Procedure Rules 2005 r 36.16(2)(b) (absence of a party) and r 36.16(3A) (application within 14 days of order).
Catchwords:	COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – Misconduct of a party
Legislation Cited:	Uniform Procedure Rules 2005, r 36.16, r 42.7, r 50.7
Cases Cited:	Hardcastle v Santos Limited [2017] NSWDC 137
Category:	Costs
Parties:	Philip Julian Hardcastle (plaintiff) Santos Limited (first defendant) Santos NSW Pty Ltd (second defendant)
Representation:	Counsel: Mr T Bagley (defendants) Solicitors: Santos Limited (defendants)
File Number(s):	2014/338782
Publication restriction:	None