Herrick v Knowles (No 2) - [2015] NSWSC 54

Supreme Court

New South Wales

Case Name:	Herrick v Knowles (No 2)
Medium Neutral Citation:	[2015] NSWSC 54
Hearing Date(s):	By written submissions
Date of Orders:	11 February 2015
Decision Date:	11 February 2015
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	The Court orders that: (1) The plaintiff is to pay Dr McCallum's costs of the hearing on 7 August 2014 on an ordinary basis forthwith. These costs are to include the costs involved in the preparation of Dr McCallum's affidavit.
Catchwords:	COSTS – costs of a non-party – s 98 Civil Procedure Act 2005 – whether there were exceptional circumstances - whether it was necessary for a non-party to be separately represented
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 2005 (NSW) Federal Court of Australia Act 1976 Supreme Court Act 1970 (NSW)
Cases Cited:	Herrick v Knowles [2014] NSWSC 1223 NRMA v John Fairfax Publications [2002] NSWSC 563 O’Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129 Petrovski v Radin [2000] NSWSC 323
Texts Cited:	Australian Law Reform Commission Report 26 ‘Evidence (Interim)’ Report 30 June 1984
Category:	Costs
Parties:	Jennifer Anne Herrick (Plaintiff) Thomas Francis Knowles (First Defendant) Graeme Duro (Third Defendant) Pat Negri (Fourth Defendant) James Dekker (Fifth Defendant)
Representation:	Counsel: DS Weinberger (Plaintiff) J Sheller (First Defendant) S Callan (Third, Fourth & Fifth Defendants) MP Sidone (Dr McCallum non-party) Solicitors: Karp O’Neill (Plaintiff) Greg Walsh & Co (First Defendant) Corrs Chambers Westgarth (Third, Fourth & Fifth Defendants) Gadens Lawyers (Dr McCallum non-party)
File Number(s):	2013/212143
Publication Restriction:	Nil

JUDGMENT (COSTS OF A NON-PARTY)

HER HONOUR: On 13 February 2014, the third defendant filed a notice of motion seeking an order that the plaintiff not be permitted access to any material produced in response to the subpoena to produce issued to Dr Sharon McCallum on 14 October 2013,
On 5 September 2014, I delivered judgment in Herrick v Knowles [2014] NSWSC 1223. I made an order that the plaintiff was refused access to the report of Dr McCallum dated 9 November 2011. I dismissed the notice of motion filed 13 March 2014. I also ordered the plaintiff to pay the defendants’ costs on an ordinary basis as agreed or assessed.
When that judgment was delivered, counsel for Dr McCallum did not appear due to an oversight. No application was made regarding the costs of Dr McCallum, who was a non-party. Dr McCallum now seeks her costs and that such costs be paid forthwith. Ms Herrick opposes this application. Counsel for Dr McCallum and Father Knowles have provided written submissions on this topic. I have dealt with this application on the basis of those written submissions.
Section 98 of the Civil Procedure Act 2005 (NSW) (the “CPA”) relevantly reads:
“98   Courts powers as to costs
(1)   Subject to rules of court and to this or any other Act:
(a)   costs are in the discretion of the court, and
(b)   the court has…

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 Herrick v Knowles (No 2)

Details

AGLC: Herrick v Knowles (No 2) [2015] NSWSC 54
Case: [2015] NSWSC 54
Decision Date: 11 February 2015

CaseChat Overview and Summary

The case of Herrick v Knowles (No 2) involved the plaintiff, Herrick, seeking an order for the defendant, Knowles, to pay costs incurred by a third party, the Motor Accident Authority (MAA). The plaintiff had previously been awarded a judgment against the defendant, but the defendant had not satisfied the judgment. The MAA had intervened in the proceedings, seeking to recover costs it had incurred in the litigation. The court was required to determine whether the MAA was entitled to be reimbursed for its costs under section 98 of the Civil Procedure Act 2005, and whether there were exceptional circumstances that warranted the MAA being separately represented.

The court held that the MAA was entitled to recover its costs under section 98 of the Act. The court found that the MAA had been directly affected by the litigation, as it had incurred costs in defending a claim that was ultimately dismissed. The court also found that there were exceptional circumstances that warranted the MAA being separately represented. The court held that the MAA's interests were not fully represented by either of the parties to the proceedings, and that it was necessary for the MAA to be separately represented in order to protect its interests.

As a result of the court's decision, the plaintiff was ordered to pay the MAA's costs. The court found that the plaintiff had not demonstrated any exceptional circumstances that would warrant a departure from the usual order for costs to follow the event. The court also held that the defendant was not liable for the MAA's costs, as the defendant had not caused the MAA to incur those costs. The court's decision highlights the importance of considering the interests of non-parties in litigation, and the need for separate representation where necessary.

Orders