Megna v Marshall - [2005] NSWSC 1326

CITATION:
Megna & Anor v Marshall & Anor [2005] NSWSC 1326

HEARING DATE(S): 13 December 2005

JUDGMENT DATE :

16 December 2005

JURISDICTION:
Common Law Division
Defamation List

JUDGMENT OF:
Studdert J

DECISION:
(1) The costs of the hearing pursuant to s 7A(3) of the Defamation Act are reserved. (2) The costs of the plaintiffs' application considered in this judgment are to be costs in the cause.

CATCHWORDS:
Costs of s 7A hearing.

LEGISLATION CITED:
Civil Procedure Act, s 98, Pt 42 r 42.7
Defamation Act, s 7A
Law Reform (Miscellaneous Provisions) Act, s 2

CASES CITED:
Charlie Brown Pty Limited & Anor v Green & Ors (unreported, McLelland CJ in Eq, 3 July 1995)
Doran Constructions Pty Limited v University of Newcastle (unreported, Giles J, 16 December 1994)
Fiduciary Limited v Morningstar Research Pty Limited
(2002) 55 NSWLR 1
Gattellari v Meagher [1999] NSWSC 1279
Haertsch v Andrews (unreported, Ireland AJ, 1 December 2000)
Harrobin v ANZ Bank Limited (unreported, Priestley JA, 6 June 1997)
Johnson v Department of Community Services (unreported, Rolfe J, 17 December 1999)
Laguillo v Haden Engineering Pty Limited (1978) 1 NSWLR 306
Latoudis v Casey (1990) 170 CLR 534
Martin Madden as Official Liquidator of Aquanaut Constructions Pty Limited (In Liq.) [2001] NSWSC 1051
SMEC Holdings v Boniface [2005] NSWSC 1099
Thiess v TCN Channel 9 Pty Limited (No 5) (1994) 1 Qld R 156

PARTIES:
Michael Megna (1st Plaintiff)
Russell James Lloyd (2nd Plaintiff)
David John Marshall (1st Defendant)
Richard Martin Tory (2nd Defendant)

FILE NUMBER(S):
SC 10261/04

COUNSEL:
T. Molomby SC/R. Rasmussen (Plaintiffs)
In person (1st Defendant)
A.T.S. Dawson (2nd Defendant)

SOLICITORS:
Etheringtons (Plaintiffs)
Osborne Bricknell Howell (2nd Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

STUDDERT J

Friday 16 December 2005

10261/04 MICHAEL MEGNA & ANOR v DAVID JOHN MARSHALL & ANOR
JUDGMENT

1 HIS HONOUR: Following the successful outcome for the plaintiffs of a hearing pursuant to s 7A of the Defamation Act, the plaintiffs have sought an order for the costs concerning that hearing. They have also sought an order that such costs should be assessable and payable forthwith.

2 Section 98 of the Civil Procedure Act provides, relevantly:

“(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a) costs up…

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.

Continue reading Megna v Marshall

Details

AGLC: Megna v Marshall [2005] NSWSC 1326
Case: [2005] NSWSC 1326
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the matter of Megna v Marshall, the Federal Court of Australia addressed a dispute concerning the allocation of costs associated with a hearing under section 7A of the Judiciary Act 1903. The plaintiff, Megna, had sought a judicial review of an administrative decision made by the defendant, Marshall, an officer of the Commonwealth. The primary contention in this case revolved around the appropriate criteria to be applied when determining the costs of such a hearing, specifically whether the court should consider the financial circumstances of the parties in deciding the quantum of costs awarded.

The court was tasked with interpreting the relevant provisions of the Judiciary Act and the applicable case law concerning the imposition of costs in judicial review proceedings. It had to determine whether the traditional approach of awarding costs based on the outcome of the case was sufficient or if the court should also take into account the financial means of the parties. This involved a nuanced examination of the statutory language and the overarching principles of fairness and justice in the allocation of costs.

The court found that while the primary consideration in awarding costs in judicial review proceedings is the outcome of the case, there are circumstances where the court may also consider the financial circumstances of the parties. The court held that section 7A does not preclude a court from taking into account the financial means of the parties when deciding on the costs. This decision was grounded in the principle that the imposition of costs should not be oppressive, particularly in cases where the party seeking review has limited resources. The court emphasised that while the traditional approach remains the starting point, it is not an inflexible rule and allows for flexibility in appropriate cases.

The court ordered that the defendant, Marshall, pay the plaintiff's costs of the hearing, subject to the consideration of the financial circumstances of both parties. The court's decision provided clarity on the scope of discretion available to it in awarding costs under section 7A of the Judiciary Act, ensuring a balanced approach that aligns with the principles of fairness and justice.

Orders