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Mullett v Nixon (No. 2)

Mullett v Nixon (No. 2)

Case [2016] VSC 641 26 October 2016

Costs

Causation

Compensatory Damages

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 01520

PAUL MULLETT	Plaintiff
v
CHRISTINE NIXON	First Defendant
KEIRAN WALSHE	Second Defendant
WAYNE TAYLOR	Third Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 October 2016
DATE OF JUDGMENT:	26 October 2016
CASE MAY BE CITED AS:	Mullett v Nixon & ors (No. 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 641

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COSTS – Actions in misfeasance in public office alleged against the first and second defendant – Actions of malicious prosecution alleged against all three defendants – Each and every cause of action alleged against each of the defendants dismissed – Defendants’ application for indemnity costs – Whether or not indemnity costs should be awarded – Date from which indemnity costs should be awarded - Ugly Tribe Company Pty Ltd v Marios Sikola & Ors [2001] VSC 189 - Macedon Ranges Shire Council v Thompson & Ors [2009] VSCA 209 - Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors 81 ALR 397 - Calderbank offer – Hazeldene’s Chicken Farm v Victorian Workcover Authority (No 2) (2005) 13 VR 435.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr A. Panna QC

Stephens Lawyers and Consultants

For the Defendants

Ms R. Orr QC

Mr D. McCredden

Victorian Government Solicitor’s Office

HIS HONOUR:

Background

By his Amended Statement of Claim of 11 March 2016, the plaintiff alleged the torts of misfeasance in public office against the first and second defendant, and the tort of malicious prosecution against the first, second and third defendants. On 31 August 2016 I found that the plaintiff had failed in every action brought against each defendant.[1] The defendants now seek an order that the plaintiff pay their costs of and incidental to the proceeding on an indemnity basis.[2]
[1]Mullett v Nixon & Ors [2016] VSC 512.
[2]Other than in respect of the costs order already made by J Forrest J on 4 April 2016, being that plaintiff pay the defendants’ costs on a standard basis in respect of a discrete discovery application made by the plaintiff.

The defendants’ primary position is that indemnity costs ought be awarded from the commencement of the proceeding on 26 March 2013.[3] Alternatively, the defendants contend that there are numerous identifiable dates across the approximately three-year history of the proceeding from which an order of indemnity costs could be made. One of the identified dates is 7 May 2016, being the day following the expiration date of a Calderbank offer[4] made by the defendants to the plaintiff on 28 April 2016.
[3]Being the date of the plaintiff’s writ and (original) statement of claim, which initiated the proceeding.
[4]See Calderbank v Calderbank [1975] 3 All ER 333.

Legal principles

Indemnity costs

The Court has a broad, unfettered discretion in awarding costs pursuant to s 24 of the Supreme Court Act 1986.[5] Though unfettered, the discretion must be exercised judicially,[6] and in civil…

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 Mullett v Nixon (No. 2)

Details

AGLC: Mullett v Nixon (No. 2) [2016] VSC 641
Case: [2016] VSC 641
Decision Date: 26 October 2016

CaseChat Overview and Summary

Mullett v Nixon (No. 2) involved a dispute between the plaintiff and three defendants. The plaintiff brought actions against the defendants, alleging misfeasance in public office and malicious prosecution. The plaintiff claimed that the defendants acted improperly in their public roles and pursued legal actions against the plaintiff without a proper basis. The case was heard by the court, which was tasked with determining whether the plaintiff's claims had merit and, if not, whether the defendants should be awarded costs.

The court examined the legal issues, including whether the plaintiff's allegations of misfeasance in public office and malicious prosecution were substantiated. The court also considered whether the defendants were entitled to indemnity costs, which are awarded when a party successfully defends against a claim and the opposing party's litigation conduct was unreasonable. The court assessed the reasonableness of the plaintiff's conduct, including whether a Calderbank offer was made, and whether the defendants' application for indemnity costs should be granted.

The court found that the plaintiff's claims were without merit and that the defendants had successfully defended against them. The court determined that the plaintiff's litigation conduct was unreasonable, justifying the award of indemnity costs to the defendants. The court also decided that the costs should be awarded from a specific date, considering the nature of the case and the conduct of the parties. The court's decision was influenced by relevant legal precedents, including Ugly Tribe Company Pty Ltd v Marios Sikola & Ors, Macedon Ranges Shire Council v Thompson & Ors, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors, and Hazeldene’s Chicken Farm v Victorian Workcover Authority (No 2).

The court ordered that the defendants were to be awarded indemnity costs from a specified date, reflecting the unreasonable conduct of the plaintiff in pursuing the claims. The precise amount of costs and the date from which they were to be awarded were detailed in the court's final orders. This decision underscored the importance of reasonable litigation conduct and the potential consequences for parties who pursue claims without sufficient basis.

Orders