Majak v Rose (No 7)
[2017] NSWCA 276
•24 October 2017
Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Majak v Rose (No 7) [2017] NSWCA 276 Hearing dates: On the papers Decision date: 24 October 2017 Before: Payne JA Decision: Costs of the motion be the respondent’s costs in the cause.
Catchwords: COSTS – no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1 Category: Costs Parties: Zofia Majak (Applicant)
Alan Rose (Respondent)Representation: Solicitors:
In Person (Applicant)
R Byrnes (Respondent)
File Number(s): 2017/00235558
Judgment
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HIS HONOUR: By notice of motion filed on 13 October 2017, the applicant sought an order vacating the hearing date fixed for this matter, 27 October 2017. On 16 October 2017, this matter came before me in the referrals list. The notice of motion was dismissed on that day: Majak v Rose (No 6) [2017] NSWCA 262. As no order for costs had been sought or foreshadowed by the respondent to the motion, no order about costs was made.
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On the afternoon of 16 October 2017, following publication of that judgment, an email was received from the respondent seeking that the matter be relisted for the purpose of making submissions about costs of the motion.
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Rather than re-list the matter and incur additional costs, each party was invited to file written submissions about the question of costs of the motion.
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On 17 October 2017, the respondent filed written submissions as to costs. On 24 October 2017, the applicant via e-mail stated that she had been sick and not able to prepare submissions. The applicant sought an extension to 31 October 2017 to file written submissions about costs of the motion.
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While I am sympathetic to the applicant’s suggested health difficulties, the hearing of this matter is fixed for 27 October 2017. It would be inappropriate to adjourn consideration of this costs question, concerning an unsuccessful motion to adjourn the principal case, until after the hearing of that principal case.
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The respondent submitted that the applicant should be ordered to pay costs of the notice of motion dated 13 October 2017 on an ordinary basis. Under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the respondent submitted that costs should follow the event.
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The respondent submitted there is nothing to suggest that the presumption that costs follow the event should be displaced in this matter and cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69] per McHugh J.
Conclusion
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Costs are in the discretion of the Court. The passage in the judgment of McHugh J in Oshlack relied upon by the respondent was a dissent. Gaudron and Gummow JJ (with whom Kirby J formed a majority) said, at [40]:
“There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the [Land and Environment] Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.”
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The principal matter is fixed for hearing in this Court on 27 October 2017. Whilst it is true that counsel for the respondent was excused from the delivery of the judgment at 2pm on 16 October 2017, no order for costs was foreshadowed by the respondent in submissions made earlier that day.
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The applicant is self-represented. By her motion, she brought the non-availability of her counsel of choice to the attention of the Court in a timely way. Her submissions were economical. Although she was unsuccessful in her motion, there is no pressing need to make an award of costs in favour of the respondent pending resolution of the principal case. On the other hand, assuming the applicant is ultimately successful in the principal case, she should not receive an award of costs for this unsuccessful motion. In all the circumstances the appropriate order is that the respondent have its costs in the cause.
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My orders are pursuant to UCPR r 36.16 vary the orders made on 16 October 2017 and order, in addition to order 1 made on that day:
Costs of the motion be the respondent’s costs in the cause.
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Amendments
21 March 2019 - Typographical amendment in [1]
Decision last updated: 21 March 2019
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