AW & Ors v State of NSW

[2005] NSWSC 1173

Supreme Court of NSW|2005-11-30|Before: Bell J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2005-11-30

Before

Bell J

Catchwords

Costs judgment

Source

Original judgment source is linked above.

Catchwords

Costs judgment

Judgment (33 paragraphs)

[1]

CITATION : AW & Ors v State of NSW [2005] NSWSC 1173

[2]

DECISION : 1. The first plaintiff is to pay twenty percent of the defendant's costs of the proceedings not previously dealt with; 2. the defendant is to pay the second and third plaintiffs their costs of the proceedings, not otherwise dealt with, limited to the costs of briefing one set of counsel (senior and junior) and one firm of solicitors to be apportioned fifty percent as to the second plaintiff on a party and party basis and fifty percent as to the third plaintiff on a party and party basis to 11 July 2003 and thereafter on an indemnity basis; such costs to be calculated on the basis that allowance is made for representation of up to one senior counsel, one junior counsel and one solicitor in court on any hearing day; allowance for out of court work by counsel not involving duplication that is related to the proceedings generally, the claim of the second plaintiff specifically or the claim of the third plaintiff specifically, but not that related to the claim of the first plaintiff specifically; allowance for out of court work by Greg Walsh & Co, Solicitors, not involving duplication, that is related to the proceedings generally, the claim of the second plaintiff specifically or the claim of the third plaintiff specifically, but not that which is related to the claim of the first plaintiff specifically; 3. allowance is to be made for the work done by Verekers Solicitors in the period 18 July 2003 to 17 September 2003 that is related to the proceedings generally, the claim of the second plaintiff specifically or the claim of the third plaintiff specifically but not that which is related to the claim of the first plaintiff specifically and not that which is in duplication of work done by Greg Walsh & Co.

[10]

2 The parties were invited to have the proceedings re-listed in order to make submissions on any issue with respect to the interest component of the judgment sums and costs. On 18 August 2005 the proceedings were re-listed to this end. There was agreement with respect to interest and judgment was entered for the second plaintiff in the sum of $107,933.33 and for the third plaintiff in the sum of $79,191.67. Written submissions were received from the parties on the question of costs. It was not possible to hear full argument on the costs issue on that day. The proceedings were stood over to 18 November. I received supplementary written submissions on behalf of each of the parties. Subsequently by leave the second and third plaintiffs and the defendant each delivered a further short submission on the form of any order and the defendant submitted a further submission in reply. 3 The proceedings were commenced by statement of claim by which each plaintiff pleaded a cause of action in negligence against the defendant on the basis of its liability for the acts of certain police and officers of the Department of Community Services. On 28 September 2001 O'Keefe J struck out the pleading and gave the plaintiffs leave to amend in order to plead causes of action for malicious prosecution and abuse of process. By further amended statement of claim filed on 21 December 2001 each of the plaintiffs pleaded causes of action in accordance with the grant of leave. None pleaded a claim for damages for false imprisonment. The first and second plaintiffs pleaded as a material fact that the arrest of each had been wrongful and without just cause or excuse. 4 On 17 July 2003 the proceedings came before Whealy J. Mr Campbell SC, who appeared on the plaintiffs' behalf, informed the Court that a problem had arisen in connection with the plaintiffs being jointly represented and that leave would be sought to file further amended statements of claim and for one of the plaintiffs to be represented by another solicitor. Mr Hodgson, who appeared on the defendant's behalf, noted that the course proposed might have costs implications (T 17/06/03 2.4-6).

[16]

11 I do not consider that the conduct of the defendant with respect to proof of the element of absence of reasonable and probable cause for the 23 June charges was unreasonable. A good deal of the oral evidence, which occupied some fifty days, was taken up with issues that were relevant to proof of malice: the relationship between MOD and SW; the conduct of police interviews with JW; the circumstances in which the personal violence order was taken out against JS. Some factual issues such as the scope of the investigation prior to 23 June were relevant both to a consideration of reasonable and probable cause and to malice. A further body of evidence related to the circumstances surrounding the arrest of each of the plaintiffs. My impression is that the amount of time that was devoted to proof of the absence of reasonable and probable cause for the 23 June charges was not substantial. The determination of this issue turned largely on an analysis of the material that was available to MOD as at 23 June. The statements of SW and EW formed part of the plaintiff's tender bundle. Some time was taken up with the question of the contents of the disclosures made by SW to MOD on 19 April 1994 and with the circumstances in which the annotations came to be made to the Cruickshank statement. 12 In supplementary written submissions the first plaintiff contended that the defendant's conduct justified an order that it pay his costs or in the alternative that each party bear his/its own costs. The court was invited to take into account the "the serious misconduct of the State" evidenced by a number of findings (WS, 24 October 2005, paragraph (1a) - (c)). Reliance was placed on Ritter v Godfrey [1920] 2 KB 47 and Monier Ltd v Metalwork Tiling Company of Australia (No 2) (1985-6) 43 SASR 588 at 592. The serious misconduct that the first plaintiff asserts arises from the findings as to the absence of reasonable and probable cause. 13 The finding that the prosecution of the first plaintiff on the complaints of SW and EW in respect of the thirty-eight charges that were laid against him on 23 June was lacking in reasonable and probable cause does not support the contention that the defendant engaged in misconduct. To my mind this case is far removed from the considerations with which the Court was concerned in Monier. The findings that that the first plaintiff relies on were, as the defendant submits, findings of error and not of impropriety. 14 The first plaintiff failed on each of his claims and there is no reason why costs should not follow the event. As the defendant acknowledged, it is not possible to determine with precision the amount of costs of the proceedings that were attributable solely to the claims brought by the first plaintiff. The defendant proposed as a practical rule of thumb that one third of the costs of the proceedings be attributed to the claims brought by the first plaintiff. 15 It is true that the trial would have been shorter had the first plaintiff not been brought his claims. However, I do not believe that it would have been shorter by one third. The circumstance that the first plaintiff was charged with a greater number of charges than the second or third plaintiffs is not a matter of moment. The second plaintiff proceeded on a third further amended statement of claim. She pleaded facts in support of her cause of action in malicious prosecution including the interview and charging of the first plaintiff on 19 April and the further charges laid against him on 23 June. The third plaintiff also relied on proof of these facts in support of her claim. In my view, it is reasonable to assess twenty percent of the costs of the proceedings as being attributable solely to the claims brought by the first plaintiff.

[19]

18 I do not consider the fact that the second and third plaintiffs' claims were commenced and continued in this Court at a time when Pt 52A r 33 of the SCR was in force to be a matter that should be taken into account as justifying depriving them or some or all of the costs to which they may otherwise be entitled. In my view the second and third plaintiffs had sufficient reason for commencing and continuing their claims in this Court. The allegations made in support of their claims were of a most serious character and each was entitled to seek vindication in this Court: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291; Vignoli v Sydney Harbour Casino Pty Ltd [1999] NSWSC 1227. 19 The defendant submitted that neither the second nor the third plaintiff had been successful on the whole of her claims. Each pleaded a cause of action in the tort abuse of process. These claims were not successful. Neither of these claims issued any prominence at the trial and no time was occupied pursuing them. The second plaintiff did not succeed with respect to that part of her claim of malicious prosecution arising out of the prosecution of the charges laid on 23 June and in January 1995. Neither plaintiff was successful with that part of her claim arising out of the maintenance of the prosecution after the Director of Public Prosecutions (the Director) took over the conduct of the proceedings. The second plaintiff was not successful on that part of her cause of action in malicious prosecution that related to the charges laid on or after 23 June. Evidence relating to the charges preferred against the first and second plaintiffs on 23 June was relevant to the third plaintiff's case of malicious prosecution. By her fourth further amended statement of claim the third plaintiff pleaded as a material fact the charging of the first and second plaintiffs with a number of further counts of aggravated sexual assault on their children on 23 June. While some focus in the course of submissions was directed to the role of the Director in taking over the prosecution and to the factual issue of when that had occurred, comparatively little time was taken up in evidence with that part of the claims that related to the maintenance of the prosecutions.

[21]

21 In written submissions, dated 21 October 2005, it was contended on behalf of the second and third plaintiffs that an award of costs on the indemnity basis should be made from the date of the originating process. For the second plaintiff, it was submitted that the order should be made, in light of the findings that are set out in paragraph 6(a) - (j) (WS 21 August 2005). For the third plaintiff, reliance was placed on the findings set out in paragraph 7(a) - (g)(WS 21 August 2005). The plaintiffs also rely on the defendant's failure to offer an apology and to the circumstance that officers in its employ (or former employ) attested to their continued belief in the plaintiffs' guilt throughout the trial. 22 The proceedings were originally framed as a claim in negligence. The second and third plaintiffs have not established that it would be appropriate to make an order for costs on the indemnity basis from the date of the filing of the originating process. The findings of malice on which the plaintiffs rely do not justify an order that their costs be paid on the indemnity basis. No feature of the conduct of the litigation is identified in support of the claim for an order that costs be paid on the indemnity basis from the date of the commencement of the proceedings: see Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257. 23 On 10 July 2003 the second plaintiff made an offer of compromise in the sum of $100,000, which was expressed to expire on 11 August 2003. On 10 July 2003 the third plaintiff made an offer of compromise in the sum of $50,000, which was expressed to expire on 11 August 2003. 24 At the time each plaintiff's offer of compromise was made causes of action were pleaded in malicious prosecution and abuse of process. The defendant was on notice of the third plaintiff's intention to enlarge her claim to include a count of false imprisonment prior to the expiration of her offer. The defendant's right to object to this substantive amendment had been reserved in the orders made by Whealy J on 18 July 2003 and was exercised by it.

AW & Ors v State of NSW

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (33 paragraphs)

Parties

Cases Cited (5)

Cited By (1)