Jones v Booth (No. 2)
[2019] NSWSC 1121
•29 August 2019
Supreme Court
New South Wales
Medium Neutral Citation: Jones and Anor v Booth and Anor (No. 2) [2019] NSWSC 1121 Hearing dates: On the papers Date of orders: 29 August 2019 Decision date: 29 August 2019 Jurisdiction: Common Law Before: Johnson J Decision: The Plaintiffs are to pay the costs of the First Defendant with respect to these proceedings.
Catchwords: COSTS – summons for declaratory relief dismissed – whether no order as to costs appropriate – unsuccessful parties contend they enjoyed some success on issue in proceedings – successful party achieved dismissal on basis foreshadowed in correspondence – costs follow the event – no good reason to depart from general rule – costs awarded Legislation Cited: Civil Procedure Act 2005
Mental Health (Forensic Provisions) Act 1990
Uniform Civil Procedure Rules 2005Cases Cited: Jones and Anor v Booth and Anor [2019] NSWSC 1066 Texts Cited: --- Category: Costs Parties: Bradley Steven Jones (First Plaintiff)
Joseph Perdicaro (Second Plaintiff)
Leading Senior Constable Darren Booth (First Defendant)
Local Court of New South Wales (Second Defendant)Representation: Counsel:
Solicitors:
Mr MW Smith (Plaintiffs)
Ms S Palaniappan (First Defendant)
Hunter Flood Lawyers (Plaintiffs)
HWL Ebsworth Lawyers (First Defendant)
Local Court of New South Wales (Second Defendant - Submitting Appearance)
File Number(s): 2018/286360 Publication restriction: ---
Judgment
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JOHNSON J: On 21 August 2019, I gave judgment in this matter, dismissing the Amended Summons and giving directions for the filing of written submissions concerning costs: Jones and Anor v Booth and Anor [2019] NSWSC 1066.
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An application for costs has been made by the First Defendant, Leading Senior Constable Darren Booth. In support of the application, the First Defendant relies upon the affidavit of Jasper Lee Lambe, solicitor, affirmed 21 August 2019 and written submissions dated 26 August 2019.
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The affidavit of Mr Lambe attaches a letter dated 28 February 2019 which was sent by the solicitors for the First Defendant to the solicitor for the Plaintiffs on a without prejudice basis save as to costs. The letter foreshadowed that the First Defendant would make submissions at the hearing of the Amended Summons along the lines which were advanced successfully giving rise to the dismissal of the Amended Summons. The First Defendant offered to resolve the proceedings upon the basis that the proceedings be discontinued with no order as to costs. The Plaintiffs did not accept that offer.
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Written submissions were furnished for the Plaintiffs on 28 August 2019 in which it was argued that there should be no order as to costs.
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In resisting the costs application made by the First Defendant, counsel for the Plaintiffs points to comments made by the Court as to the correct interpretation and operation of s.32 Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”) and the erroneous approach adopted by a Magistrate in this respect in 2018. It was submitted that the Plaintiffs had succeeded on a substantial issue in the proceedings so that the appropriate conclusion ought be that the Court makes no order as to costs.
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The Court has a discretion to order costs: s.98(1) Civil Procedure Act 2005. The general rule is that costs follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005 (“UCPR”).
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As the judgment of the Court of 21 August 2019 makes clear, the First Defendant succeeded in submissions advanced which urged that the Amended Summons be dismissed.
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It is necessary to consider the judgment of the Court in its entirety for the purpose of considering the question of costs. As the Court made clear, a temporary and erroneous ruling by one Magistrate concerning s.32 MHFP Act was overtaken shortly thereafter by a correct approach adopted by another Magistrate on the s.32 application of the Second Plaintiff, Mr Perdicaro.
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The commencement of proceedings in the Supreme Court of New South Wales some two months later was unnecessary and of no utility for the reasons explained in the primary judgment.
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Accordingly, the Plaintiffs commenced what were unnecessary proceedings, and then continued with the proceedings even after the solicitors for the First Defendant made clear the approach which was to be adopted at the hearing. The First Defendant succeeded in the dismissal of the proceedings upon the basis communicated in the letter of 28 February 2019. I do not think the Plaintiffs are assisted on the costs issue by the comments of the Court concerning the construction and operation of s.32 MHFP Act.
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All of this leads to the conclusion that there is no good reason why the Court should depart from the usual rule as to costs, that is that costs should follow the event.
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The Court orders the Plaintiffs to pay the costs of the First Defendant with respect to these proceedings.
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Decision last updated: 29 August 2019