Camenzuli v Morrison

Court of Appeal (NSW)|2022-04-14|Before: Basten JA, Leeming JA, Payne JA, Christine McDiven AM

Solicitors: Pryor Tzannes & Wallis Solicitors (Plaintiff) Thomson Geer Lawyers (First, Second, Third and Eighth Defendants) Clayton Utz (Fourth, Fifth and Sixth Defendants) Harpur Phillips (Seventh Defendant) File Number(s): 2022/00074168

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Costs of principal proceedings

On 8 April 2022 the plaintiff agreed to an order that he pay the costs of the first, second, third and eighth defendants (who were jointly represented). He resisted any order in favour of the other defendants who did not take an active role in the proceedings. He sought to be heard if some other order were sought by any defendant.
With respect to the costs of the principal proceedings, no order was sought by any other defendant within the times fixed for submissions, nor was any application for an extension of time received. However, on 12 April 2022, the first, second, third and eighth defendants filed a written submission asserting that the other defendants should also have an order for costs in their favour. Given that they had not applied for costs, the Court did not intend to make such an order, which was not appropriately sought on behalf of separately represented parties. The costs of the first, second, third and eighth defendants should not extend to any costs incurred after 8 April 2022.
At 9:55am on 13 April 2022 submissions were filed by the solicitor for the fourth, fifth and sixth defendants (the proposed candidates) seeking an order that the plaintiff pay their costs of the proceedings. No such order had been foreshadowed, so far as the Court is aware. No extension of time was sought, nor explanation proffered for the non-compliance with the timetable. They accepted that they "did not take an active role in the proceeding"; that there was "some commonality of interest in the subject matter of the proceeding", and that "the interests of the defendants remained substantially aligned during the course of the proceeding".
There is no suggestion that the fourth, fifth and sixth defendants were not proper parties, nor that they were not entitled to obtain legal representation. It may also be accepted that they have limited their actual expenditure appropriately, and have only incurred modest costs. The belated application may be put to one side in circumstances where, for the reasons given below, no order should be made as to their costs.
At 10:32am on 13 April the solicitor for the seventh defendant (the President of the NSW Division of the Liberal Party) filed a submission seeking an order that the plaintiff pay his costs. The same observations as noted above with respect to the fourth, fifth and sixth defendants apply to the seventh defendant's application.
As a matter of principle, this was a case in which only one set of costs should be awarded. The relevant principles were identified by the Court in Local Democracy Matters Inc v Infrastructure NSW (No 2), [1] in the following terms: "[18] … Should LDM be ordered to pay more than one set of the respondents' costs? The issues arising on the appeal were narrowly circumscribed. Save for the question of discretion, they were pure questions of law or inferences to be drawn from documents. While each of the four respondents was a necessary party, their interests very substantially overlapped, if indeed they were not relevantly identical. As much became plain in the running of the appeal, where senior counsel for the third respondent assumed primary carriage of the argument. [19] It is also to be borne in mind that the orders from which the appeal was brought were made on 6 March 2019, and that interlocutory relief had been extended by the primary judge until 8 March: see Local Democracy Matters Incorporated v Infrastructure NSW (No 3) [2019] NSWLEC 22. A final hearing took place in this Court on 15 March 2019, a week after the appeal was filed. The submissions of LDM essentially mirrored those which had been made without success before the primary judge. [20] It may be that no submissions were made on the point because whether LDM is ordered to pay the costs of one or more than one respondent is a matter of indifference to LDM, having regard to its lack of assets. However, even so the discretion as to costs should be exercised in accordance with principle. In Statham v Shephard (No 2) (1974) 23 FLR 244 at 246, Woodward J stated the general principle that, subject to certain provisos, 'the court will not normally allow two sets of costs to defendants where there is no possible conflict of interest between them in the presentation of their cases'. That principle has regularly been applied in this Court, including for example in Taylor v Owners - Strata Plan No 11564 (No 2) [2013] NSWCA 153 at [6] and HP Mercantile Pty Ltd v Hartnett [2017] NSWCA 79 at [8]. It is applicable to the present case. [21] As Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]: 'underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs.' [22] In HP Mercantile Pty Ltd v Hartnett at [14] this Court said that: 'the ultimate question is not (as the respondents submit) whether they have acted reasonably, nor whether there has shown to be duplication. The question is whether it is reasonable for the unsuccessful litigant to bear more than one set of costs.' [23] We do not think it is reasonable for the unsuccessful appellant to bear three sets of costs of an appeal which was so tightly confined both in terms of the three grounds and also in terms of the timing. The appropriate order is one that reflects the actuality of the litigation, which was very substantially carried by the Minister."
That was a case in which three respondents had been active respondents, with two retaining senior counsel, although the primary carriage of the respondents' case was left to the Minister. [2] The principles were reaffirmed by the Court in JE v Secretary, Department of Communities and Justice (No 2). [3]
In the present case, only the jointly represented first, second, third and eighth defendants played an active role in the proceedings. The other defendants did not and should not be awarded costs.

Notice of motion of 4 April

As the Court noted in its principal judgment, the plaintiff had sought to amend his statement of claim to obtain injunctive relief against the registered officers of the Liberal Party, in the event that he was successful in his challenge to the steps taken by the National Executive. On 4 April 2022, the afternoon before judgment was delivered, the plaintiff's position was formalised by filing a notice of motion and supporting affidavit seeking the amendment of the statement of claim to add relief against the registered officers and their deputies. The amendment was contingent upon the plaintiff's success and, as the plaintiff accepted, given that he had failed, the appropriate order was that the notice of motion be dismissed. That order was made on 5 April 2022, after the handing down of the principal judgment.
On the delivery of judgment Mr Duggan and Mr Davis appeared for the seventh defendant (the President of the NSW Division). The motion having been dismissed, the NSW Division officers were not joined to the proceedings. There was no evidence that they would have resisted joinder had it otherwise been appropriate to make the amendments sought; nor was there evidence that if they were joined, they would have done otherwise than enter submitting appearances.
The NSW Division officers (and no doubt the Commonwealth officers) were sent email copies of the unfiled statement of claim. The covering email from the solicitor for the plaintiff suggested that the motion would be unnecessary if the registered officers gave an undertaking to await delivery of judgment. He also indicated that no interlocutory relief would be sought. The solicitor for the three NSW Division officers said in her emailed response that, as no election had been called at that time and no opportunity had arisen for the lodgement of nominations with the Electoral Commission, the motion should await the delivery of judgment (which occurred).
In the event, and as the parties anticipated, the issue became moot before either side took any step to address the motion. Counsel for the proposed additional parties had been present throughout the hearing, appearing for the seventh defendant. In the circumstances it may be assumed that the briefing of counsel, who was present in any event to take judgment, was largely a formality. Given that there is to be no order as to the costs of the parties to the principal proceeding, other than the active defendants, there should be no order as to the costs of the motion.

Orders

The Court orders: 1. The plaintiff pay the first, second, third and eighth defendants' costs of these proceedings, excluding any costs incurred after 8 April 2022. 2. Dismiss all other applications for costs.

Endnotes

[2019] NSWCA 118 (Leeming JA, Sackville AJA, Emmett AJA).
Local Democracy Matters (No 2) at [2].
[2020] NSWCA 243 at [15] (Leeming JA; Meagher and Gleeson JJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2022

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (7)

Cited By (1)