National Sorry Day Committee Incorporated v Helen Moran
[2013] ACTSC 161
•5 August 2013
NATIONAL SORRY DAY COMMITTEE INCORPORATED
v HELEN MORAN
[2013] ACTSC 161 (5 August 2013)
COSTS – judgment entered for plaintiff – defendant originally only one of six defendants – both parties made efforts to resolve dispute – inappropriate for defendant to be liable for all of the plaintiff’s costs
EX TEMPORE JUDGMENT
No. SC 46 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 5 August 2013
IN THE SUPREME COURT OF THE )
) No. SC 46 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:NATIONAL SORRY DAY COMMITTEE INCORPORATED
Plaintiff
AND:HELEN MORAN
Defendant
ORDER
Judge:Burns J
Date:5 August 2013
Place:Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff.
The defendant is to pay thirty (30) percent of the plaintiff’s costs of the proceedings as agreed or assessed on a party/party basis.
These highly regrettable proceedings are finally drawing to an end. These proceedings commenced by way of an Originating Application which originally sought orders in relation to a declaration as to the constitution of the executive committee of the National Sorry Day Committee Incorporated, the plaintiff in these proceedings. At that time, there were six defendants. The matter came before me on an application for interim orders on 13 February this year. At that time, I made interim orders effectively ordering that until further order of the court those who were most recently said to have been elected as the executive committee of the plaintiff would act as the executive committee and those who were the defendants in the proceedings at that time effectively would not be the executive committee until the matter was further heard by the court.
The making of those orders appeared to trigger a resolution of at least that issue between the parties. However, there were other issues that still remained to be dealt with which had not been referred to in the original Originating Application. In that regard, there were items of property that the plaintiff alleged that the first defendant, Helen Moran, had in her possession and in particular, a signed and framed apology from the Prime Minister of Australia, Mr Kevin Rudd, to the stolen generations which had apparently been presented on 13 February 2008. That item was said to be in the possession of the first defendant but it was claimed to be the property of the plaintiff.
Despite my misgivings in relation to the course which the plaintiff intended to take, it effectively deleted its original claim by way of amendment and re-pleaded its claim as an entirely new claim seeking return of that piece of property from the first defendant. The proceedings continued against the first defendant, Helen Moran alone. The sole issue with respect to the proceedings at that time was who was the owner of that particular item, the plaintiff or the defendant?
I accept that efforts were made by each party to resolve that issue by obtaining information from appropriate sources and I accept that it was not until a copy of the speech, which was prepared for the minister to give at the National Sorry Day reception at Old Parliament House on 26 May 2008 was located and provided by the Commonwealth, that it became reasonably clear that it was the intention of the Commonwealth to gift the apology to the National Sorry Day Committee itself. It is clear from the material that has been put before me today that efforts were made to resolve the proceedings as they originally were framed. However, it appears that those efforts were in vain. I may say that it seems to me to be somewhat lacking in good faith that some of the conditions which the plaintiff suggested as appropriate as part of a deed of settlement in this matter, were with respect to a resolution of the broader dispute between the parties at that time.
I accept that Ms Moran may well have been unclear in her own mind as to who was the appropriate executive committee of the association and I also accept that she may have been unclear in her own mind, until recent times, as to who had been the intended recipient of the signed and framed apology. However, the fact that she may have acted reasonably based upon her state of mind does not mean that the plaintiff is not entitled to at least some costs with respect to these proceedings.
In determining the appropriate amount of costs, the appropriate basis upon which costs are to be awarded, I take into account that the remaining defendant, Ms Moran, was one of only six defendants with respect to the first iteration of the claim against the six defendants and it would be inappropriate, in my view, to require her to pay all of the costs of those proceedings. I take into account all of the material which has been put before me today and I also take into account the fact that the matter has now been resolved such that no ultimate hearing is required. Of course, that does not reflect upon the order for costs that should be made today.
The parties have agreed that the appropriate way to bring these proceedings to an end is for judgment to be entered on behalf of the plaintiff and I now enter that judgment.
I will order that the defendant is to pay thirty percent of the plaintiff’s costs of the proceedings as agreed or assessed on a party/party basis. I do not accept that it would be appropriate to order costs on a more onerous basis against the defendant.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 9 August 2013
Counsel for the Plaintiff: Mr B Webster
Solicitor for the Plaintiff: Bede Webster
Counsel for the Defendant: Mr R Markham
Solicitor for the Defendant: Minter Ellison
Date of Hearing: 5 August 2013
Date of Judgment: 5 August 2013
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