Tate v Duncan-Strelec

[2015] NSWSC 196

Supreme Court

New South Wales

Medium Neutral Citation:	Tate v Duncan-Strelec [2015] NSWSC 196
Hearing dates:	10 March 2015
Date of orders:	10 March 2015
Decision date:	10 March 2015
Jurisdiction:	Equity Division
Before:	Bergin CJ in Eq
Decision:	Each party to pay their own costs
Catchwords:	[COSTS] – whether costs follow the event – identification of “success” – whether indemnity costs should be awarded
Category:	Costs
Parties:	Thomas Richard Tate (Plaintiff) Amanda Duncan-Strelec (Defendant)
Representation:	Counsel: G R Rubagotti (Plaintiff) A Duncan-Strelec (Defendant) (in person) Solicitors: Hickey Lawyers (Plaintiff)
File Number(s):	2013/367092
Publication restriction:	Nil

EX TEMPORE Judgment

1. The plaintiff seeks indemnity costs of these proceedings. The careful outline of submissions of Ms G R Rubagotti, of counsel, is noted. They were handed to Ms Duncan-Strelec at the Bar Table this morning.

2. The plaintiff submits that costs should follow the event and not only should they follow the event but they should be indemnity costs, having regard to the conduct outlined in paragraphs 10 to 12 of those short submissions.

3. These have been complex proceedings. In paragraphs 73 to 79 of the Judgment, each of the charges is outlined. The convictions related to Charges 1, 2, 3, 5 and 6. As can be seen from paragraphs 73, 74 and 75, those three charges were during the same period and related to the publication of the matters on the website relating to the Lavington proceedings.

4. The fourth Charge was the subject of a not guilty finding. It was a serious charge, that the defendant used the documents or information obtained from the plaintiff in court proceedings for a collateral or ulterior purpose and thus in a manner not reasonably necessary for the proper conduct of the proceedings, namely the publication on the websites referred to in Charges 1, 2 and 3. The contemnor was successful in defending that Charge and obtained a not guilty verdict.

5. The fifth Charge was a charge effectively in respect of the conduct of the administration of justice and in particular, the complaints made by the contemnor in respect of the judge who conducted the Lavington proceedings.

6. The sixth Charge was the charge relating to the destruction of documents, such charge having been found to have been made out, having regard to the fact that the contemnor effectively admitted to it during the course of proceedings.

7. The seventh Charge is a serious charge, one that the contemnor had failed to comply with orders made by the court in September 2013. The plaintiff failed to establish that charge and a finding of not guilty was made in respect of it.

8. It is important in considering costs orders in this type of litigation to ensure that parties are not punished. If they regard it as appropriate to bring before the Court a charge of contempt and they succeed in respect of it, good reason should be shown for why costs should not follow the event, and if an indemnity costs order is sought then care needs to be taken in balancing the matters the subject of the exercise of discretion.

9. However, as I said earlier today in my remarks on sentence, the relationship between these parties was very complex. On the one hand the contemnor claims that she was pursued, effectively in a scatter gun approach, by the plaintiff seeking to bring seven charges when effectively one might have done and put the contemnor to the time, expense and stress to defend herself against these very serious charges, two of which were found not to be made out. On the other hand the plaintiff submitted that it is important that such cases be brought to the attention of the Court and if a party does so they should not be out of pocket if they achieve success. It is understandable that both parties make these respective submissions having regard to the history between them. The plaintiff has achieved a modicum of success. I would regard Charges 1 to 3 as being charges that should be taken into account together on a costs argument, which means that Charges 1 to 3, as well as Charges 5 and 6 should be looked at as successfully prosecuted, and Charges 4 and 7, both very serious charges, as having been unsuccessful.

10. In those circumstances I am satisfied that the just and equitable outcome is that each party pay their own costs.

11. I order that each party pay their own costs.

**********

Decision last updated: 10 March 2015