Jobnet v Copeman

[1999] NSWSC 965

CITATION:	Jobnet v Copeman [1999] NSWSC 965 revised - 30/09/99
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	2384 of 1999
HEARING DATE(S):	13 September 1999
JUDGMENT DATE:	13 September 1999
PARTIES :	Jobnet Employment Services Incorporated (first plaintiff) Silvano Bevinetto, Jill Blunden, Trudi Twemlow (second plaintiffs) Alwyn Copeman (first defendant) Owen Smith (second defendant) Glen Donaldson (third defendant) Tony Crockett (fourth defendant) Janelle Garside (fifth defendant) Joe Ben Mattos (sixth defendant) Betty Burke (seventh defendant) Dianne Walsh (eighth defendant) Tracey Woodman (ninth defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr M. Walton, SC with him Ms J Pentelow (plaintiffs) Mr. J.M. Atkin (first defendant)
SOLICITORS:	Marsdens (Plaintiffs) Simpson & Partners (first defendant) Pye Rogers Fairfax & Patterson (second defendant)
CATCHWORDS:	JUDGMENT on costs and final orders
DECISION:

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

MONDAY 13 SEPTEMBER 1999

2384/99 JOBNET EMPLOYMENT SERVICES INCORPORATED & ORS v ALWYN COPEMAN & ORS

JUDGMENT

1    HIS HONOUR: The only question left in this matter is the question of costs. As I indicated in my earlier judgement, in my view the proceedings were brought about in the main by the conduct of the first defendant and the eighth defendant. Nevertheless, all defendants purported to be members of the committee of the first plaintiff, and they have failed in that they have purported to act as members of the committee elected at a meeting which was not properly constituted. Without that these proceedings would probably not have been necessary irrespective of the lack of procedural correctness in the way that the first plaintiff has conducted its affairs.

2    So far as the plaintiffs are concerned, in the second group of plaintiffs Jill Blunden and Judy Twemlow have been found not to be members of the first plaintiff or of its committee, albeit that it was expected that they were. In my view no order for costs can be made in their favour but no separate order for costs should be made against them.

3    I consider that the first plaintiff, having brought these proceedings and having established that those persons who purported to take control of it were not entitled to do so, is also entitled to its costs and has standing. In those circumstances, the successful plaintiffs should have their costs against all the defendants except Mr Smith whom I would wish to refer to separately.

4    There can be no doubt that Mr Smith took an active part in the matters which gave rise to these proceedings. He purported to act as the chairman of a new committee which was not ever elected as a committee. While he filed an appearance in these proceedings and at one of the directions hearings it was foreshadowed that he would submit, as far as I can ascertain he has never done so, that foreshadowing being subject to final instructions which are not shown ever to have been given.

5    It follows that it is my view that all defendants should be made liable for any costs order in favour of the plaintiffs, but that each of those defendants, other than the first defendant and the eighth defendant should have the right to seek an order that they be indemnified by the first and eighth defendants.

6    An application has been made for indemnity costs on the basis that the defendants or at least the first and eighth defendants were putting forward a claim which could not have been made out and should not have been put forward. Firstly the first plaintiff, as all the plaintiffs, have not succeeded in that claim and, secondly, the affairs of the first plaintiff in my view were not conducted in such a way as to justify an order of indemnity costs and I refuse that application.

1

ORDERS

1    HIS HONOUR: The orders that I make are as follows:

1. Declare that Silvano Bevinetto is a member of the committee of the first plaintiff and that Jill Blunden and Judy Twemlow are not members of that committee.

2. Declare that the first, fourth, fifth, sixth, eighth and ninth defendants are not members of the committee of the first plaintiff.

3. Declare that the first and seventh defendants are members of the first plaintiff and that the eighth defendant is not a member of the first plaintiff.

4. Declare that the purported meetings of the first plaintiff held on 19 May 1998 and 11 May 1999 are not valid meetings and are of no effect.

5. Declare that the eighth defendant was an employee of the first plaintiff when she was dismissed on or about 4 March 1999.

6. Declare that the persons listed in paragraph 6 of the amended summons are not members of the first plaintiff.

7. Order the defendants pay the costs of the first plaintiff and of Silvano Bevinetto including reserved costs.

2    No order as to costs of Jill Blunden and Judy Twemlow.

3    Leave to the defendants other than the first defendant and the eighth defendant to apply for an order they be indemnified against their liability for costs by the first and/or the eighth defendant.

4    The exhibits can be returned.

Last Modified: 06/30/2000