Megna v Marshall

[2004] NSWSC 191

Reported Decision: 60 NSWLR 664

Supreme Court

CITATION:	Megna v Marshall [2004] NSWSC 191
HEARING DATE(S):	19 March 2004
JUDGMENT DATE:	19 March 2004
JUDGMENT OF:	O'Keefe J
DECISION:	No order as to costs.
CATCHWORDS:	Costs - Whether "expense or loss" include the costs of retaining a solicitor and/or counsel - Indemnity costs - Appearing before the Court is a public duty - Conduct money - Compliance with Supreme Court Rules
LEGISLATION CITED:	Supreme Court Rules Pt 3 rr 1, 2, 3, 4
CASES CITED:	Degmam Pty Limited (in liquidation) v Wright (No. 2) (1983) 2 NSWLR 354 Oshlack v Richmond River Council (1998) 193 CLR 72
PARTIES :	Michael Megna - Plaintiff David John Marshall - Defendant
FILE NUMBER(S):	SC 10261/04
COUNSEL:	Mr T Molomby SC - Plaintiff Mr JP Busuttil - Defendant Mr ATS Dawson - Mr Richard Martin Tory
SOLICITORS:	Mr V Dominello (Etheringtons Solicitors) - Plaintiff Mr J Stonhan (Stephen Smart & Associates) - Defendant Mr D Bricknell (Osborne Bricknell Howell) - Mr Richard Martin Tory

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

19 March 2004

10261/04 Michael Megna v David John Marshall

JUDGMENT

1 In this matter the plaintiff obtained an ex parte order from the court requiring the attendance of Richard Martin Tory for examination pursuant to Pt 3 r 1 of the Supreme Court Rules. The form of the application did not accord with the rules which require a summons for such an application, but the court subsequently dispensed with the application of the relevant rule.

2 The fact that a summons was not used gave rise to a situation in which on the return of the order counsel for Mr Tory raised an argument that the court did not have jurisdiction to make the order it had made. This argument failed. However it was a matter that was not raised frivolously and was argued as a serious matter. It required the court to give a judgment on the matter, and there was nothing in the taking of that point or the arguing of it that was in any way delinquent or unreasonable.

3 The form of Pt 3 contemplates that a person against whom an order pursuant to r 1 is made, is entitled to his or her conduct money. That is provided by r 3. Rule 4 provides that "Where any person incurs expense or loss in complying with an order under r 1 in an amount exceeding any sum paid under r 3, the Court may order the applicant to pay to that person an amount sufficient to make good the expense or loss." The form of r 3 clearly contemplates that anything that is paid by way of conduct money will be set off against the expense and loss that is referred to in r 4.

4 A question arises as to whether the words "expense or loss" include the costs of retaining a solicitor and/or counsel. There appears to be no authority on the precise rule but when one has regard to the object of the rule, which is to ensure that people are not unreasonably out of pocket as a result of complying with the court's order, the court should ensure that the payment that is made to them accommodates their situation. In my opinion the word "expense" as used in Pt 3 r 4 is apt to include the expense of retaining a solicitor and/or counsel.

5 Through his counsel the respondent to the order, Mr Tory, has sought indemnity costs. I do not think that this is an appropriate case in which to order indemnity costs.

6 The High Court adverted to the award of indemnity costs in Oshlack v Richmond River Council (1998) 193 CLR 72. So too did this court in Degmam Pty Limited (in liquidation) v Wright (No. 2) (1983) 2 NSWLR 354 (a case that has been followed on many occasions by many single Judges of this court including myself). Applying the principles dealt with in those cases it cannot be said that the plaintiff engaged in some relevant delinquency or unreasonable conduct or improper conduct in relation to the conduct of the proceedings. The only matter pointed to was a failure to comply with the procedure specified in Pt 3 r 2. Compliance with that rule was dispensed with. In those circumstances it seems to me that the proper order to make is one that would be usual in such a case, that is not an order for indemnity costs, rather it is an order that the plaintiff (who is the applicant) pay the respondent's costs, that is the costs of Mr Tory, on the basis contemplated by rr 3 and 4 of Pt 3, and that the expenses for which he is entitled to be reimbursed include the reasonable costs of counsel and solicitor.

7 An argument has been raised in relation to whether or not Mr Tory is entitled to an order for a particular amount because of the hourly charge that he makes to his clients. That matter can abide the determination of the appropriate costs assessor, however, it is appropriate to observe that the court is not his client. The court is a public body serving the interests of justice and that in appearing in answer to the court’s order Mr Tory is fulfilling a legal duty.

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Last Modified: 11/17/2004