Trueman v Horsley Park Social Club Ltd (No 2)
[2019] NSWSC 77
•31 January 2019
Supreme Court
New South Wales
Medium Neutral Citation: Trueman v Horsley Park Social Club Ltd (No 2) [2019] NSWSC 77 Hearing dates: 31 January 2019 Date of orders: 31 January 2019 Decision date: 31 January 2019 Jurisdiction: Common Law Before: Lonergan J Decision: The defendant pay the plaintiff’s costs of the proceedings.
Catchwords: COSTS - general rule - costs follow the event Legislation Cited: Restricted Premises Act 1946 (NSW), s 3(1)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1Cases Cited: Trueman v Horsley Park Social Club Ltd [2018] NSWSC 1892 Category: Costs Parties: Acting Sergeant Nathan Trueman (Plaintiff)
Horsley Park Social Club (Defendant)Representation: Counsel:
Solicitors:
F Rogers (Plaintiff)
D Woodbury (Defendant)
Office of the General Counsel (Plaintiff)
V L Macri Lawyers (Defendant)
File Number(s): 2018/00074525 Publication restriction: Nil
ex tempore Judgment
-
On 7 December 2018 I published a decision in respect of this matter which was an application pursuant to s 3(1) of the Restricted Premises Act 1946 (NSW) that certain premises be declared premises to which Part 2 of the Restricted Premises Act ought to apply, Trueman v Horsley Park Social Club Ltd [2018] NSWSC 1892.
-
The application was vigorously defended by senior counsel retained to act for the defendant Club.
-
In that vigorous defence, a number of aspects of the evidence relied upon by the applicant were excluded and a certain amount of recalibration as to the way the application was presented occurred.
-
Because of the extent of the argument, some discrete issues of statutory interpretation arose. Those discrete issues led me to take the view that I required further assistance by way of written submissions to ensure that I appropriately dealt with the requirements of the legislation.
-
In particular, I required further assistance on the issue of the definition of "supply" in the context of the legislation, the definition of "reputed criminal" in the context of the legislation, and the assistance of written authorities on those issues.
-
What occurred was that the counsel for the Crown provided detailed submissions addressing those requests but also relating back to and making arguments about evidence tendered on the application and making or re-making further arguments in an effort to persuade the Court as to why the relief sought ought to be granted.
-
Because of that additional material, I took the view that it was appropriate that senior counsel for the defendant have an opportunity to respond to that further material that comprised argument, as opposed to strictly submissions and authorities dealing with matters of definition.
-
Either way, the oral and written submissions provided by both counsel for the plaintiff and senior counsel for the defendant assisted me at every step.
-
This was an application that had a number of aspects to it and a number of complexities and, thus, the second day where an hour or so of oral argument ensued was necessary to assist me in reaching my conclusions.
-
In the circumstances and, to an extent, understandably, counsel for the defendant has raised that I ought to consider whether I should exercise my costs discretion to confine any costs order to the “first round” of material and submissions given my observation made by my Associate in the e-mail of 21 August 2018, that submissions provided by counsel for the applicant went beyond the limited leave given.
-
The Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), relating to costs provide me with a wide discretion. The general rule as set out in UCPR r 42.1 is that subject to Part 42, if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs.
-
Clearly, and as correctly submitted by counsel for the defendant, that gives me a discretion to decide whether or not I ought to confine my costs order in some way.
-
Having considered the matters raised in the arguments made today by counsel for the plaintiff and counsel for the defendant, I have formed the view that the appropriate order should comprise all of the legal costs incurred by the applicant/plaintiff to be paid on the usual basis and, accordingly, the order I make is that the defendant pay the plaintiff's costs of the proceedings.
**********
Decision last updated: 13 February 2019
1