Kairouz v Bracks (No 3)

[2021] VSC 783

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00274

MARLENE KAIROUZ	Plaintiff
v
THE HONOURABLE STEVE BRACKS AC THE HONOURABLE JENNY MACKLIN (In their capacity as Administrators of the Australian Labor Party Victorian Branch and the persons whose names are set out in the Schedule in their capacity as the National Executive of the Australian Labor Party and the Interim Governance Committee of the Victorian Branch of the Australian Labor Party and as Trustees of Trusts under Rule 21 of the Australian Labor Party Victorian Branch Rules respectively)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2021
DATE OF JUDGMENT:	16 November 2021 (Revised)
CASE MAY BE CITED AS:	Kairouz v Bracks (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 783

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COSTS – Plaintiff unsuccessful – Two groups of defendants with separate representation – One set of costs appropriate – Division of costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Walter	Cornwalls
For the 1st – 11th, 13th and 16th – 26th Defendants	Mr PG Willis SC with Mr AD Lang and Mr JH Kirkwood	Holding Redlich
For the 12th, 14th and 15th Defendants	Dr AT Hoel	Patrick & Associates
For the 28th Defendant	Hope & Co Lawyers

HIS HONOUR:

1. The usual order is that costs follow the event and therefore Ms Kairouz must be ordered to pay one set of costs on a standard basis as her proceeding has been dismissed.[1] There is no occasion to order that she pay two sets of costs and that suggestion was only faintly put.[2] That would be inappropriate in this case bearing in mind the provisions of ss 7 and 24 of the Civil Procedure Act 2010 and the authorities to which the parties referred me.[3] Although the 12^th, 14^th and 15^th defendants (‘the Three Defendants’) had been separately represented in both proceedings, they said ‘for the avoidance of doubt…their participation in, and role on, the National Executive is not relevantly different to that of the other members of the National Executive named as defendants in the Asmar Proceeding and the Kairouz Proceeding’.[4]

   [1]Kairouz v Bracks (No 2) [2021] VSC 671.

   [2]See HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79 [13]-[15]; Clarence City Council v Commonwealth of Australia (No 2) [2020] FCAFC 147 [16].

   [3]See for example Khoury v Kirwan (No 6) [2021] VSC 682 [36]-[53]; Ex parte McCay (1936) 36 SR (NSW) 592, 595.

   [4]Kairouz v Bracks (No 2) [2021] VSC 671 [19].

1. The question then is whether the Three Defendants should receive any costs. In my opinion, they should be awarded some costs because they made a not insignificant contribution to the legal submissions made in opposition to the plaintiff’s case. I referred to their submissions on a number of occasions.

1. I consider that in the exercise of the discretion as to costs, justice will be done by an appropriate division of the one set of costs. This can be achieved by the following procedure. First, that the costs on a standard basis of the 1^st to the 11^th, 13^th and 16^th to 26^th defendants should be agreed or assessed by the Costs Court in default of agreement. Once that is done 80% of those costs should be awarded to those defendants and 20% to the 12^th, 14^th and 15^th defendants. Any assessment of costs on a standard basis by the Costs Court should only be between the plaintiff and the 1^st to the 11^th, 13^th and 16^th to 26^th defendants.

1. This order will avoid the possibility that Ms Kairouz may end up being required to pay more than 100% of one set of costs on a standard basis.

1. I will add in the order under ‘Other Matters’ that the effect of my order dismissing the proceeding on 19 October 2021 is that the interlocutory injunction I granted on 19 March 2021 is discharged.

SCHEDULE OF PARTIES

BETWEEN:

MARLENE KAIROUZ...................................................................................................................... First Plaintiff

and

The Honourable STEVE BRACKS AC, in his capacity as Administrators of the Australian Labor Party Victorian Branch........................................................................................................................................... First Defendant

The Honourable JENNY MACKLIN, in her capacity as Administrators of the Australian Labor Party Victorian Branch...................................................................................................................................... Second Defendant

The Honourable ANTHONY ALBANESE, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................... Third Defendant

Senator TIM AYRES in his capacity as a member of the National Executive of the Australian Labor Party.................................................................................................................................................. Fourth Defendant

STEVEN BAKER, in his capacity as a member of the National Executive of the Australian Labor Party.... Fifth Defendant

NICK CHAMPION, in his capacity as a member of the National Executive of the Australian Labor Party Sixth Defendant

KATE DOUST, in her capacity as a member of the National Executive of the Australian Labor Party.. Seventh Defendant

GERARD DWYER, in his capacity as a member of the National Executive of the Australian Labor Party................................................................................................................................................... Eighth Defendant

DAVID GRAY, in his capacity as a member of the National Executive of the Australian Labor Party..... Ninth Defendant

ROSE JACKSON, in her capacity as a member of the National Executive of the Australian Labor Party. Tenth Defendant

TIM JACOBSON, in his capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................... Eleventh Defendant

GRAEME KELLY, in his capacity as a member of the National Executive of the Australian Labor Party................................................................................................................................................. Twelfth Defendant

Senator SUE LINES, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Thirteenth Defendant

TARA MORIARTY, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Fourteenth Defendant

BOB NANVA, in his capacity as a member of the National Executive of the Australian Labor Party.. Fifteenth Defendant

MICHAEL O’CONNOR, in his capacity as a member of the National Executive of the Australian Labor Party.............................................................................................................................................. Sixteenth Defendant

MICHAEL RAVBAR, in his capacity as a member of the National Executive of the Australian Labor Party.......................................................................................................................................... Seventeenth Defendant

AMANDA RISHWORTH, in her capacity as a member of the National Executive of the Australian Labor Party............................................................................................................................................ Eighteenth Defendant

WENDY STREETS, in her capacity as a member of the National Executive of the Australian Labor Party........................................................................................................................................... Nineteenth Defendant

SHANNON THRELFALL-CLARKE, in her capacity as a member of the National Executive of the Australian Labor Party, and as Trustee under Rule 21.1 and Rule 21.2 of the Australian Labor Party Victorian Branch Rules.................................................................................................................................... Twentieth Defendant

Senator RAFF CICCONE, in his capacity as a member of the National Executive of the Australian Labor Party........................................................................................................................................ Twenty-First Defendant

SUSIE BYERS, in her capacity as a member of the National Executive of the Australian Labor Party, as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party, and as Trustee under Rule 21.1 and Rule 21.2 of the Australian Labor Party Victorian Branch Rules.. Twenty-Second Defendant

LINDA WHITE, in her capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party Twenty-Third Defendant

BEN DAVIS, in his capacity as a member of the National Executive of the Australian Labor Party..................................................................................................................................... Twenty-Fourth Defendant

MICHAEL DONOVAN, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party........................................................................................................................................ Twenty-Fifth Defendant

LLOYD WILLIAMS, in his capacity as a member of the National Executive of the Australian Labor Party and as a member of the Interim Governance Committee of the Victorian branch of the Australian Labor Party....................................................................................................................................... Twenty-Sixth Defendant

JAMES MCWHINNEY, in his capacity as Trustee under Rule 21.1 and 21.2 of the Australian Labor Party Victorian Branch Rules.............................................................................................. Twenty-Seventh Defendant

LABOR SERVICES & HOLDINGS PTY LTD, in its capacity as Trustee under Rules 21.3 of the Australian Labor Party Victorian Branch Rules...................................................................................... Twenty-Eighth Defendant