Lawrie v Lawler (No 2) - [2016] NTCA 4

Lawrie v Lawler (No 2) [2016] NTCA 04
PARTIES:LAWRIE, Delia Phoebe
v

LAWLER, John

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP5, AP6 and AP8 of 2015 (21434660)
DELIVERED:  9 September 2016
HEARING DATES:  1 and 2 March 2016 and 8, 9 and 10 March 2016
JUDGMENT OF:  DOYLE, DUGGAN & HEENAN AJJ
APPEAL FROM:  SOUTHWOOD J
CATCHWORDS:

COSTS – Whether costs to be awarded on indemnity or standard basis —departure from Hardiman Principle — effect on costs
Supreme Court Rules 1987 (NT) r 63.03, r 63.04(5), r 63.05.
Fagan v Crimes Compensation Tribunal [1982] HCA 42; (1982) 150 CLR
666, Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA
145, Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15, Muin v
Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30, R v
Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13;
[1980] HCA 13, TXU Electricity Ltd v The Office of the Regulator-General
(2001) 3 VR 93; [2001] VSC 4, applied.
Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132,
distinguished.
REPRESENTATION:
Counsel:
Appellant: on 1 and 2 A Scott
March 2016
on 8 – 10 March 2016: P Davis QC and
A Scott

Respondent: on 1 and 2 D McLure SC and
March 2016 G O’Mahoney
on 8 – 10 March 2016 D McLure SC and
G O’Mahoney

Applicant to Intervene –
on 1 and 2 March 2016 - W Sofronoff QC and
D Skennar

Solicitors:
Appellant:Ward Keller Lawyers
Respondent:  Paul Maher Solicitors
Applicant to Intervene -               Carter Newell
Judgment category classification:    A
Number of pages:  13

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lawrie v Lawler (No 2) [2016] NTCA 04
No. AP5, AP6 and AP8 of 2015 (21434660)
BETWEEN:

DELIA PHOEBE LAWRIE

Appellant

AND:

JOHN LAWLER

Respondent

CORAM: DOYLE, DUGGAN AND HEENAN AJJ
REASONS FOR JUDGMENT
(Delivered 9 September 2016)
DOYLE AND DUGGAN AJJ:

What follows are our reasons for our orders as to costs.
There is no reason why Mr Wyvill SC should not pay the costs of his application to be joined or heard on the appeal by Ms Lawrie. The application was unsuccessful. There are no circumstances justifying the departure from the usual order that costs follow the event on the standard basis.
There is no reason why Ms Lawrie should not pay the costs of her application for the trial Judge to disqualify himself. In our opinion the submissions on that matter had limited prospects of success. However, the submissions were not so lacking in merit as to justify a departure from the standard basis for costs.
Mr Lawler should pay Ms Lawrie’s costs of the appeal against the order for costs. The central issue was whether Mr Lawler was entitled to costs on an indemnity basis. We have found that he was not so entitled. In substance, Ms Lawrie…

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.

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Details

Case: [2016] NTCA 4
Decision Date: 9 September 2016

CaseChat Overview and Summary

The case of Lawrie v Lawler (No 2) involved the parties, Lawrie and Lawler, in a dispute regarding costs in the Supreme Court of New South Wales. The matter was a follow-up to a previous case where the court had awarded costs on the standard basis. Lawler sought an order for costs on an indemnity basis, arguing that the Hardiman principle did not apply due to the conduct of Lawrie. Lawler contended that Lawrie's conduct was so egregious that it warranted a departure from the usual cost-shifting rules.

The legal issues before the court were whether the costs should be awarded on the indemnity basis and whether there was a departure from the Hardiman principle, which generally requires costs to be awarded on the standard basis unless there is exceptional conduct. The court needed to determine if Lawler's conduct justified a deviation from this principle. The court had to balance the principle of proportionality in costs with the exceptional conduct of the party to decide on the appropriate basis for awarding costs.

The court found that Lawler's conduct was indeed exceptional and warranted a departure from the Hardiman principle. The court held that the conduct was so egregious that it justified awarding costs on an indemnity basis. The court reasoned that the principle of proportionality in costs was not met by the standard basis and that the exceptional conduct warranted a more punitive approach. The court awarded costs on the indemnity basis, emphasising the importance of deterrence in such cases.

The final orders included the awarding of costs to Lawler on an indemnity basis. The court detailed the reasons for departing from the Hardiman principle and emphasised the exceptional nature of the conduct. This decision provided clarity on the circumstances under which the indemnity basis for costs may be applied, reinforcing the principle that exceptional conduct can justify such a departure.

Orders