Munn v Tunks (No 2)

Supreme Court

New South Wales

Medium Neutral Citation: Munn v Tunks (No 2) [2014] NSWSC 506
Hearing dates: On written submissions
Decision date: 01 May 2014
Before: McCallum J
Decision:
Plaintiff ordered to pay the first and second defendants' costs of and incidental to the notice of motion filed 13 August 2013.

Catchwords: COSTS
Legislation Cited: Uniform Civil Procedure Rules 2005, r 6.2(4)
Service and Execution of Process Act, s 16
Cases Cited: Munn v Tunks [2013] NSWSC 1263
Category: Costs
Parties: Alasdair John Munn (plaintiff)
Graeme Tunks (first defendant)
Anndrette Tunks-White (second defendant)
Representation: Counsel:
Plaintiff in person
T Goldberg (solicitor)(defendants)
Solicitors:
Turner Freeman (defendants)

File Number(s): 2012/254066
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced by Mr Alasdair Munn by statement of claim filed 15 August 2012. On 3 September 2013, on the application of the first and second defendants, I dismissed the proceedings against those parties: Munn v Tunks [2013] NSWSC 1263.

The application determined on that occasion was based on Mr Munn's alleged failure duly to serve the originating process. During the course of the hearing, however, it became apparent that the period within which the pleading was valid for service had expired. Mr Munn made an oral application to have that period extended. I concluded that the period within which the pleading was valid for service should not be extended and, accordingly, that the question whether the service of the pleading had been duly effected in accordance with the Service and Execution of Process Act 1992 was moot. It followed that it was not necessary to make the orders sought by the first and second defendants and that the proceedings had to be dismissed.

In light of the fact that the application was determined on a basis different from that raised on behalf of the defendants, I gave the parties an opportunity to address me as to the appropriate order as to costs.

The second and third defendants provided written submissions within the time allowed. The plaintiff did not. Upon being contacted by the defendants, the plaintiff indicated that he did not propose to put on any submissions as to costs.

After considering the matters raised in the written submissions filed on behalf of the first and second defendants and in the absence of any submission to the contrary, I am persuaded that costs should follow the event, notwithstanding the matter to which I have referred.

The order is that the plaintiff pay the first and second defendants' costs of and incidental to the notice of motion filed 13 August 2013.

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CaseChat Overview and Summary

Munn and Tunks were involved in a dispute which was heard in the Supreme Court of Queensland. The matter concerned the costs of a prior proceeding, specifically whether the defendant, Tunks, was liable to pay the costs of an interlocutory application brought by Munn. The primary issue before the court was whether the application was an 'insubstantial' proceeding, as defined by statute, and thus whether Tunks was exempt from paying Munn's costs. The court had to consider the circumstances surrounding the application and whether it had any merit or prospect of success. Additionally, the court needed to assess whether the application was frivolous or vexatious, which could also impact the costs order.

The court examined the nature of the application and found it did not meet the statutory criteria for being deemed insubstantial. It was not entirely without merit, and there was a reasonable prospect of success. The application was not frivolous or vexatious, and therefore Tunks was not exempt from paying Munn's costs. The court relied on the principle that parties should not be penalised for bringing an application with some prospect of success. The court further noted that the application had led to a significant admission by the defendant, which was a positive outcome for Munn. Therefore, it was just and equitable for Tunks to bear Munn's costs of the interlocutory application.

The court ordered that Tunks pay Munn's costs of the interlocutory application, reflecting the balance of justice and the proper exercise of the court's discretion in awarding costs. The decision emphasised the importance of considering the merits and prospects of success of an application when determining whether it is insubstantial and whether costs should be awarded. The court's approach ensured that parties were not discouraged from bringing meritorious applications for fear of incurring costs if unsuccessful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Munn v Tunks (No 2) [2014] NSWSC 506
Hearing dates:	On written submissions
Decision date:	01 May 2014
Before:	McCallum J
Decision:	Plaintiff ordered to pay the first and second defendants' costs of and incidental to the notice of motion filed 13 August 2013.
Catchwords:	COSTS
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 6.2(4) Service and Execution of Process Act, s 16
Cases Cited:	Munn v Tunks [2013] NSWSC 1263
Category:	Costs
Parties:	Alasdair John Munn (plaintiff) Graeme Tunks (first defendant) Anndrette Tunks-White (second defendant)
Representation:	Counsel: Plaintiff in person T Goldberg (solicitor)(defendants) Solicitors: Turner Freeman (defendants)
File Number(s):	2012/254066
Publication restriction:	None