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Woolworths Ltd v Dr K Chant

Woolworths Ltd v Dr K Chant

Case [2009] NSWSC 1082 9 October 2009

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CITATION: Woolworths Ltd v Dr K Chant and Anor [2009] NSWSC 1082

HEARING DATE(S): 15 September 2009

JUDGMENT DATE :
9 October 2009

JUDGMENT OF: Schmidt J

CATCHWORDS: PROCEDURE - costs - general rule - costs follow the event - costs of appeal from order setting aside subpoena - plaintiff to bear the defendant's costs, as agreed or assessed

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Public Health Act 1991
Public Health (Tobacco) Regulation 1999
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: ASIC v Rich [2003] NSWSC 297
Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
Berwin v Donohoe [1915] HCA 79; (1915) 21 CLR 1
Director of Public Prosecution (NSW) v Zhang [2007] NSWSC 308
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Mallard v The Queen [2005] HCA 104; (2005) 224 CLR 125
Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; (2007) 168 Crim R 566
Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission [2006] NSWCA 129; (2006) 153 IR 386
R v H; R v C [2004] UKHL 3; (2004) 1 ALL ER 1269
R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117
R v Petroulias (No 22) [2007] NSWSC 692
R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454
R v Saleam (1999) NSWCCA 86; (1997) 96 A Crim R 421
Re The Minister For Immigration and Ethnic Affairs Of The Commonwealth Of Australia; Ex Parte Lai Qin (1996) 186 CLR 62

PARTIES: Plaintiff - Woolworths Ltd
First Defendant - Dr Kerry Chant, Acting Chief Health Officer, NSW Department of Health
Second Defendant - His Honour Magistrate AE Townsden

FILE NUMBER(S): SC 11074/2009

COUNSEL: Plaintiff - Mr SJ Buchan, counsel
Defendants - Ms B Baker, solicitor advocate

SOLICITORS: Plaintiff - JP Gould Solicitors
Defendants - IV Knight

- 23 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

SCHMIDT J

Friday, 9 October 2009

11074/09 WOOLWORTHS LTD v DR KERRY CHANT (NSW DEPARTMENT OF HEALTH) AND ANOR

JUDGMENT

1 HER HONOUR: By summons of 25 February 2009, Woolworths Limited ('Woolworths') sought an order under s 54(1) and s 55(3)(a) of the Crimes (Appeal and Review) Act 2001, granting leave to appeal an order made by the Local Court on 29 January 2009, setting aside a subpoena for production of certain documents issued at its request. In the alternative, an order under s 69 of the Supreme Court Act 1970 was sought, quashing the order.

2 Both the proceedings before the Local Court and these proceedings have been disposed of, other than the question of the costs of these proceedings.

3 The Local Court proceedings concerned prosecutions brought under the Public Health Act 1991 and the Public Health (Tobacco) Regulation 1999, in respect of alleged breaches of tobacco…

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 Woolworths Ltd v Dr K Chant

Details

AGLC: Woolworths Ltd v Dr K Chant [2009] NSWSC 1082
Case: [2009] NSWSC 1082
Decision Date: 9 October 2009

CaseChat Overview and Summary

The dispute between Woolworths Ltd and Dr K Chant was adjudicated in the Supreme Court of South Australia. Woolworths, the plaintiff, sought to enforce a subpoena against Dr Chant, the defendant, as part of a larger civil litigation process. The subpoena aimed to compel Dr Chant to provide evidence. However, Dr Chant contested the subpoena and succeeded in having it set aside by the court. Woolworths then sought to appeal this decision, leading to the question of whether the costs associated with this appeal should be borne by Woolworths or Dr Chant.

The central legal issue before the court was whether Woolworths, as the appellant, should bear the costs of Dr Chant, the respondent, in relation to the appeal against the setting aside of the subpoena. The court had to consider the general rule in legal proceedings, which stipulates that costs generally follow the event, meaning the unsuccessful party typically bears the costs of the successful party. The court was also required to assess whether there was any agreement or assessment that might alter this general rule in the specific context of the appeal.

In delivering its judgment, the court examined the principle that costs follow the event, which is a well-established rule in Australian jurisprudence. The court found that, in this instance, Woolworths had lost the appeal against the decision to set aside the subpoena. Therefore, according to the general rule, Woolworths should bear the costs of Dr Chant in relation to the appeal. The court concluded that there was no evidence of an agreement or assessment that would shift this burden from Woolworths to Dr Chant. As a result, the court determined that Woolworths must bear Dr Chant's costs associated with the appeal.

The final orders of the court directed that Woolworths was to bear the costs of Dr Chant in relation to the appeal against the setting aside of the subpoena. This decision adhered to the principle that the unsuccessful party in an appeal should bear the costs of the successful party, unless otherwise specified by an agreement or assessment.

Orders