White v Woodward (Costs) - [2020] VSC 593

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2017 00001

NOLA WHITE	Plaintiff
v
WILLIAM WOODWARD	First Defendant
and
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2020
DATE OF RULING:	14 September 2020 (revised from ex tempore reasons delivered on 7 September 2020)
CASE MAY BE CITED AS:	White v Woodward (Costs)
MEDIUM NEUTRAL CITATION:	[2020] VSC 593

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COSTS – Application for non-party costs order – Plaintiff wholly unsuccessful at trial – Substantial adverse credit findings made against critical witness – Critical witness in relationship with plaintiff – Whether principles in Knight v FP Special Assets (1992) 174 CLR enlivened in respect of witness – No evidence of witness having played an active role in conduct of litigation – No evidence of witness having interest in subject matter of litigation – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the First Defendant	Mr G Lubofsky	Andrew Croxford & Associates
For Mr Gregory Charlesworth	Mr L Magowan	PCL Lawyers

HIS HONOUR:

On 16 June 2020, I entered judgment for the first defendant (‘Mr Woodward’) in this proceeding, following a trial earlier in the year.[1]
[1]White v Woodward [2020] VSC 258.

Thereafter, Mr Woodward applied for non-party costs orders against Tracey Pauline Rothwell trading as Rothwell Lawyers,[2] and Mr Gregory Charlesworth. Rothwell Lawyers had been the solicitors on the record for the plaintiff (‘Ms White’) until judgment had been entered in the proceeding. Mr Charlesworth was a witness at trial.
[2]This summons was subsequently amended to seek the non-party costs order from Rothwell Lawyers Pty Ltd, being the properly named respondent.

On 2 July 2020, having regard to a Calderbank letter that Mr Woodward sent to Ms White prior to trial, I ordered that Ms White pay Mr Woodward’s costs of and incidental to the proceeding, to be assessed on the standard basis until 21 November 2019 and thereafter on an indemnity basis. I also made timetabling orders for the determination of the non-party costs applications.

On 17 July 2020, the summons against Rothwell Lawyers was dismissed by consent, with no order as to costs.

The issue remaining for determination is the non-party costs claim against Mr Charlesworth. By his points of claim, Mr Woodward essentially contended that the basis for the costs order against Mr Charlesworth was that he was the effective plaintiff in the proceeding.

Although Mr Charlesworth challenged the adequacy of the points of claim, I see no reason to accede to his submission that the summons be summarily dismissed. I am satisfied from the written submissions and supporting affidavits that were filed by Mr Charlesworth that he understands the basis of the claim and was in a position to respond to it. In my view, it is preferable that the application be dealt with on its merits.

The parties were not in significant dispute as to the relevant principles that…

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 White v Woodward (Costs)

Details

AGLC: White v Woodward (Costs) [2020] VSC 593
Case: [2020] VSC 593
Decision Date: 14 September 2020 (revised from ex tempore reasons delivered on 7 September 2020)

CaseChat Overview and Summary

In the matter of White v Woodward, the plaintiff sought an order for costs against a non-party witness. The dispute centred on the plaintiff's unsuccessful litigation against the defendant. The court had to determine if it was appropriate to make an order for costs against a non-party witness who had been a critical part of the plaintiff's case but had provided evidence that was significantly undermined during the trial.

The court examined whether the principles from Knight v FP Special Assets applied, which permit the court to make a costs order against a non-party when that party has played an active role in the litigation or has an interest in the subject matter of the litigation. The court found that the witness had not played an active role in the conduct of the litigation and did not have an interest in the subject matter of the litigation. Consequently, the application for costs against the non-party was dismissed.

The reasoning of the court was grounded in the evidence presented at trial, which highlighted the unreliability of the critical witness due to adverse credit findings. The court noted that the witness, who was also in a relationship with the plaintiff, had not demonstrated any active participation in the litigation process nor did they have any stake in the outcome of the case. As such, the court concluded that the plaintiff's application for costs against the non-party witness was not warranted. The court dismissed the application and made no order for costs against the non-party witness.

Orders