Zaiter v Ruddock (No 2) - [2021] NSWSC 907

Supreme Court

New South Wales

Medium Neutral Citation: Zaiter v Ruddock (No 2) [2021] NSWSC 907
Hearing dates: 23 July 2021
Date of orders: 23 July 2021
Decision date: 23 July 2021
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff to pay defendants’ costs

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Costs of parties up to entry of submitting appearance — Whether construction of major political party’s constitution public interest litigation

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Zaiter v Ruddock [2021] NSWSC 880

Category: Costs
Parties:
Martin Zaiter (Plaintiff)
Phillip Ruddock (First Defendant)
Chris Stone (Second Defendant)
Penny George (Third Defendant)
Christopher Rath (Fourth Defendant)
Tobias Lehmann (Fifth Defendant)
Aileen MacDonald (Sixth Defendant)
Mary-Lou Jarvis (Seventh Defendant)
Matthew Camenzuli (Eighth Defendant)
Representation:
Counsel:

P E King and A Power (Plaintiff)

S Duggan (First to Seventh Defendants)
S Robertson and M Maconachie (Eighth Defendant)

Solicitors:

Stanton and Stanton (Plaintiff)
Harpur Phillips (First to Seventh Defendants)
Pryor Tzannes and Wallis (Eighth Defendant)

File Number(s): 2021/185012
Publication restriction: Nil

EX TEMPORE Judgment (Revised)

Summary

The Court delivered its reasons in these proceedings on 21 July 2021: Zaiter v Ruddock [2021] NSWSC 880 (the Principal Judgment). This judgment deals with the final disposition of the proceedings. Defined terms in the Principal Judgment have the same meaning in these reasons. The appearances were as set out in the Principal Judgment with the addition of Mr S Duggan of Counsel, who appeared for the first to seventh defendants (the Submitting Parties) and the Party. This judgment assumes familiarity and should be read with the Principal Judgment.
For the reasons which follow, the final orders of the Court will be:

Order that the amended summons dated 7 July 2021 is dismissed.

Order the plaintiff to pay the eighth defendant’s costs of these proceedings.

Order that order 14 of the orders made on 1 July 2021 as extended by order 1 of the orders made on 16 July 2021 (interlocutory injunction) is dissolved.

Order the plaintiff to pay the first to seventh defendants’ and the Liberal Party of Australia (NSW Division)’s costs of these proceedings, being their costs of today and:

In the case of the Liberal Party of Australia (NSW Division), until it ceased to be a party; and

In the case of the first to seventh defendants, until they filed their submitting appearances.

Mr Zaiter's submissions

Mr King pressed for this notation and order:

“1. Note that the parties agree that the conditions set out in clause 13.2.4 of the Constitution by the State Executive for the exercise of power provided by that clause have arisen with respect to selection and endorsement of candidates for the next ordinary local government elections for the City of Parramatta Council to be held on 4 September 2021 or at such later time as may occur for Liberal candidates.
2. Order that each…

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 Zaiter v Ruddock (No 2)

Details

AGLC: Zaiter v Ruddock (No 2) [2021] NSWSC 907
Case: [2021] NSWSC 907
Decision Date: 23 July 2021

CaseChat Overview and Summary

The case of Zaiter v Ruddock (No 2) involved two parties, Zaiter and Ruddock, in a dispute that reached the court. Zaiter sought to challenge certain actions taken by Ruddock, and the case revolved around the issue of costs in legal proceedings, particularly whether the construction of a major political party’s constitution should be considered public interest litigation.

The central legal issues before the court included the general rule that costs follow the event, which generally means that the losing party in a legal action must pay the winning party's costs. A specific point of contention was the extent to which these costs should be borne by the parties up to the entry of submitting appearance. The court also had to consider whether the construction of a major political party’s constitution, as part of the proceedings, qualified as public interest litigation, which could potentially alter the usual cost-bearing rules.

The court's reasoning focused on the application of the general rule of costs following the event. It examined the circumstances surrounding the entry of submitting appearance and whether any special considerations applied due to the nature of the litigation as public interest. The court concluded that the proceedings did not meet the criteria for public interest litigation, thus adhering to the general rule. Consequently, the court determined that the costs incurred by the parties up to the entry of submitting appearance should be borne by the respective parties.

The final orders of the court upheld the general rule of costs following the event and ruled that the construction of the political party’s constitution did not qualify as public interest litigation. The parties were to bear their own costs up to the point of submitting appearance.

Orders