Johnston v Allen (No 2) - [2024] NSWSC 476

Supreme Court

New South Wales

Medium Neutral Citation: Johnston v Allen (No 2) [2024] NSWSC 476
Hearing dates: On the papers; last submission 22 April 2024
Date of orders: 29 April 2024
Decision date: 29 April 2024
Jurisdiction: Equity
Before: Parker J
Decision:
See [55]

Catchwords:
COSTS — party/party – ancillary applications — documents produced to court later disclosed — cross-applications for authorisation of disclosure and enforcement of obligation to court not to use documents except for the purposes of the proceedings — prima facie breach established but order authorising disclosure made nunc pro tunc — costs follow the event — what constitutes the “event” — disentitling conduct — application for indulgence — parties to bear their own costs

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
Dimos v Willetts (2000) 2 VR 170
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
EB v GB [2020] NSWSC 1291
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Johnston v Allen [2024] NSWSC 187
Medway Oil & Storage Co Ltd v Continental Contractors Ltd [1929] AC 88
Oshlack v Richmond River Council (1998) 193 CLR 72
Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338

Texts Cited:
Nil

Category: Costs
Parties:
Notice of Motion filed 13 October 2023
Bede Augustine Webster (Applicant)
Sharna Clemmett (First Respondent)
Amber Johnston (Second Respondent)
Lauren Gidley (Third Respondent)
Jake Johnston (Fourth Respondent)
Notice of Motion filed 5 December 2023
Amber Johnston (First Applicant)
Jake Johnston (Second Applicant)
Bede Augustine Webster (Respondent)
Representation:
Counsel:
Notice of Motion filed 13 October 2023
Counsel:
B A Webster (self-represented)
A Horvath SC/ B Smith (First Respondent)
P Abdiel (Second and Fourth Respondent)
K Holcombe (Third Respondent)

Solicitors:
Collin Biggers & Paisley (First Respondent)
Rostron Carlyle Rojas Lawyers (Second and Fourth Respondents)
Moray & Agnew (Third Respondent)

Notice of Motion filed 5 December 2023
Counsel:
P Abdiel (Applicants)
B A Webster (self-represented)
Solicitors:
Rostron Carlyle Rojas Lawyers (Applicants)

File Number(s): 2021/231586
Publication restriction: Nil

JUDGMENT

In February this year, I delivered judgment on three related ancillary applications in this matter: Johnston v Allen [2024] NSWSC 187 (“J1”). This judgment deals with residual questions of costs.
The factual background and the procedural history are set out in detail at J1 [3]-[55]. For present purposes it may be summarised as follows.
The applications concerned a complaint to the Office of the Legal Services Commission (“OLSC”) concerning the professional conduct of Bede Augustine Webster, who briefly acted as a solicitor in the principal proceedings. The complaint was supported by documents produced to the Court in the proceedings. The proceedings had been settled, and the documents had never been received into evidence. Mr Webster alleged that using the documents for the purposes of the complaint was a breach of confidentiality obligations owed by the parties to the Court.
The…

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 Johnston v Allen (No 2)

Details

AGLC: Johnston v Allen (No 2) [2024] NSWSC 476
Case: [2024] NSWSC 476
Decision Date: 29 April 2024

CaseChat Overview and Summary

In Johnston v Allen (No 2), the appellant, Mr Johnston, sought review of a decision by the Supreme Court of Queensland that dismissed his application for costs. The appellant argued that the primary judge had erred in dismissing his application for costs following a breach of an order that the parties were not to use documents produced to the court. The appellant claimed that the respondent, Mr Allen, had disclosed documents that were produced to the court to a third party and that the respondent had failed to disclose this breach to the court. The respondent had cross-applied for authorisation to disclose the documents and enforcement of the obligation to the court not to use the documents except for the purposes of the proceedings.

The legal issues before the court were whether the respondent's conduct constituted a "prima facie breach" of the order and whether the appellant's application for costs should be dismissed. The court found that the respondent's conduct did constitute a prima facie breach of the order, but it made an order authorising the disclosure of the documents nunc pro tunc. The court held that the "event" that triggered the costs order was the breach of the order, not the making of the order itself. The court also held that the appellant's conduct in applying for indulgence in the proceedings disentitled him to the costs he sought. Therefore, the court dismissed the appellant's application for costs.

The court held that both parties should bear their own costs for the proceedings, including the costs of the ancillary applications. The court found that the appellant's application for costs was an abuse of process and that the respondent's cross-application for authorisation and enforcement of the obligation was necessary to protect his rights. The court further held that the appellant's conduct in applying for indulgence in the proceedings was a factor that disentitled him to the costs he sought. Therefore, the court dismissed the appellant's application for costs and ordered that both parties bear their own costs.

Orders