Madden v Wade

[1999] VSC 376

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

R U L I N G

No. 6864 of 1999

JUSTIN MADDEN	Plaintiff
v
JAN WADE & ORS	Defendants

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 1999
DATE OF RULING:	15 September 1999
CASE MAY BE CITED AS:	Madden v Wade & Ors
MEDIA NEUTRAL CITATION:	[1999] VSC 376

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Constitution Act Amendment Act 1958 (Vic) ss.5(2) and 267A - costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K.H. Bell QC with Mr S. Moore	Slater & Gordon
For the Defendants	Mr M. Rozenes QC	Victoria Government Solicitor

HER HONOUR: 

1. Before making orders in this matter, there is an application for costs on behalf of the plaintiff.  In effect, it is said that the defendants have acquiesced to the application by virtue of the undertaking that is now proffered.

1. In order to determine costs, it would be necessary for me, in effect, to determine the merits or otherwise of the plaintiff's case.  The fact that the defendants have proffered the undertaking they are about to do is by no means an admission of the plaintiff's case.  In the course of litigation it may be viewed as a compromise of the proceeding.

1. For the purpose of determining the merits of the plaintiff's case, it will be necessary to determine complex issues, including the relative provisions of the Constitution Act Amendment Act 1958 (Vic), in particular, s.267A, but, more importantly, the application, if any, of Crown immunity under s.5(2) of that Act.

1. It is by no means a simple matter.  Accordingly, this is a matter in which I consider it is appropriate to make no order for costs, and I will therefore refuse the order for costs sought by the plaintiff.

1. In terms of the orders I make, subject to submissions from counsel, they are as follows:

1. Upon the defendants by their counsel undertaking by 9.30 a.m. On 16 September 1999 to take all reasonable steps to ensure that the material identified in the exhibits to the affidavit of Marcus Rogers Clayton, sworn 15 September 1999, complies with the requirements of s.267A(1)(a) of The Constitution Act Amendment Act 1958 (Vic), such undertaking to be confined to the material dated from 23 August 1999 onwards, the following orders are made:

1.The requirements of Rules 5.031 and 8.02 of the Rules are dispensed with.

2.The plaintiff is authorised to commence the proceeding by originating motion in accordance with form 5C.

3.The plaintiff's summons dated 15 September 1999 is adjourned sine die.

4.No orders as to costs.

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