CURRY v COMMONWEALTH OF AUSTRALIA

T Game SC: Ms K Nomchong - Plaintiffs COUNSEL : I Butcher First and Third Defendants D Mallon Second Defendant

Steve O'Connor Plaintiffs Australian Government Solicitor First Defendant SOLICITORS : IV Knight Crown Solicitor Second Defendant Gary Cleary & Associates Third Defendant Alan Taciak in person Fourth Defendant Nicolas Moir & Associates Fifth Defendant

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patrick Bernard CURRY and Anor v COMMONWEALTH OF AUSTRALIA and ORS JUDGMENT 1 RS HULME J: By Further Amended Notice of Motion dated 10 October 2008, the plaintiffs seek leave to file and serve an Amended Statement of Claim against 5 persons who are already defendants in these proceedings, viz: (i) The Commonwealth of Australia; (ii) The State of New South Wales (iii) 3 persons said to have been former police officers, Messrs Deaves, Taciak and Warwick and who were said at the relevant time to have been members of a Joint Commonwealth/State Task Force ("the JTF") 2 Other named persons were also said to have been police officers attached to the JTF at relevant times. One of those persons was a Mr McNamara. He and Messrs Deaves, Taciak, Warwick are said to have been members of the Australian Federal Police and the Commonwealth of Australia is said to be vicariously liable for their actions. 3 Other persons named and who were said to have been officers of the New South Wales Police Service and for whose actions the State of New South Wales is said to be vicariously liable are Messrs Haken, Donaldson, Southwell and Paynter. 4 The cause of action relied on in the proposed pleading is malicious prosecution. 5 After a number of allegations directed to the issue of vicarious liability and which it is unnecessary to notice further, the proposed pleading alleges that the Plaintiff was charged with 10 and the Second Plaintiff was charged with 9 offences, that the Third Defendant was the informant on all charges, that the Plaintiffs were committed for trial and then called for trial on 5 charges. 6 In summary, those 5 charges were:- (i) Conspiracy between about 1 March and 18 April 1984 of import not less than a trafficable quantity of heroin; (ii) Importation on or about 28 June 1984 of not less than a trafficable quantity of heroin; (iii) Importation on or about 13 November 1984 of not less than a trafficable quantity of heroin; (iv) Incitement between about 1 November 1984 and 25 June 1985 of Robert Nixon and Richard Paynter to import heroin; and (v) Conspiracy between about 1 June 1984 and 25 June 1985 to supply diamorphine. 7 The first three of the original charges against the Plaintiffs accord with the first three of those just mentioned save and except that, in the case of the second charge, the quantity was alleged to be not less than the commercial quantity. 8 It would seem that there was no incitement charge originally preferred. The fifth charge summarised above is in terms similar to charges 941 and 943 originally preferred save and except that those original charges confined the period concerned to between 14 November 1984 and 25 June 1985. 9 In summary form, according to the proposed pleading, the fourth to tenth charges originally preferred against Mr Curry, were: Charge 1042 - that between about March and June 1984 he conspired to import not less than a commercial quantity of heroin. Charge 1043 - that between about 2 and 15 November 1984 he conspired to import not less than a trafficable quantity of heroin. Charge 941 - that between 14 November 1984 and 25 June 1985 he conspired to supply diamorphine, commonly known as heroin. Charge 1557 - that between about 19 November and 23 December 1984 he conspired to import not less than a trafficable quantity of heroin. Charge 1256 - that between about 31 December 1984 and 12 June 1985 he conspired to import not less than a trafficable quantity of heroin. Charge 1041 - that on 24 June 1985 he had in his possession diamorphine, commonly known as heroin in excess of (some) quantity prescribed. Charge 1040 - that on 24 June 1985 he supplied diamorphine, commonly known as heroin. 10 In summary form, according to the proposed pleading, the fourth to ninth charges originally preferred against Mrs Curry were: Charge 1046 - that between about March and June 1984, she conspired to import not less than a commercial quantity of heroin. Charge 1045 - that between about 2 and 15 November 1984 she conspired to import not less than a trafficable quantity of heroin. Charge 943 - that between 14 November 1984 and 25 June 1985 she conspired to supply diamorphine (commonly known as heroin). Charge 1260 - that between 19 November and 23 December 1984 she conspired to import not less than a trafficable quantity of heroin. Charge 1261 - that between about 31 December 1984 and 12 January 1985 she conspired to import not less than a trafficable quantity of heroin. Charge 1047 - that on 24 June 1985 she supplied diamorphine, commonly known as heroin, in that she had in her possession a quantity in excess of that prescribed. 11 The proposed pleading alleges that the Plaintiffs were committed for trial on all of the 19 charges originally preferred, convicted on each of the 5 the subject of indictment, and in due course sentenced. One appeal to the Court of Criminal Appeal, was dismissed but on another application to the Court of Criminal Appeal following the Royal Commission into the New South Wales Police Force, the Plaintiffs' convictions were quashed and verdicts of acquittal entered. 12 Argument concerning the proposed amendment largely centred around the paragraphs that followed, particularly paragraphs 27 to 29 of the proposed pleading and it is convenient to set these out. Paragraphs 30 to 43 largely followed the general form of paragraphs 28 and 29 and there was no significant further argument around those later paragraphs. "27. The following members of the JTF were substantially and sufficiently involved in the procurement and maintenance of the charges to thereby be prosecutors of the charges against the Plaintiffs: (a) Haken, by reason of the matters alleged in paragraphs 28 and 29 herein; (b) The Third Defendant, by reason of the matters alleged in paragraphs 30 and 31 herein; (c) The Fourth Defendant, by reason of the matters alleged in paragraphs 32 and 33 herein; (d) The Fifth Defendant, by reason of the matters alleged in paragraphs 34 and 35 herein; (e) Donaldson, by reason of the matters alleged in paragraphs 36 and 37 herein; (f) Southwell, by reason of the matters alleged in paragraphs 38 and 39 herein; (g) McNamara, by reason of the matters alleged in paragraphs 40 and 41 herein; and (h) Paynter, by reason of the matters alleged in paragraphs 42 and 43 herein (hereinafter referred to "the named JTF members") Particulars of involvement of Haken in the procurement of the charges . 28. Haken:- (a) participated in an investigation of the Plaintiffs in relation to possible drug trafficking from about November 1984 to June 1985; (b) was aware that Paynter acting in an undercover role had accompanied the Plaintiffs on a trip to Thailand in December 1984 during which no drugs were procured or imported into Australia; (c) was aware that Paynter recorded conversations with the Plaintiffs by wearing listening devices between November 1984 to June 1985. (d) was aware that telephone calls, conversations and events which occurred in the Plaintiffs' home and office were recorded by way of listening devices concealed in the Plaintiffs' home and office (hereinafter referred to as "the tape recordings"); (e) was aware that the tape recordings were identified in log books kept in respect of the listening posts at the Plaintiffs' home and office (hereinafter referred to as "the listening post logs"); (f) at approximately midday on 24 June 1985 entered the Plaintiffs' home together with other members of the JTF, including the Third and Fourth Defendants and Southwell, in purported execution of a search warrant and thereafter participated in the verbal and physical abuse of the Plaintiffs…, (including by himself, and in his presence by the Third Defendant and Southwell) (g) whilst at the Plaintiffs' home participated in planting a quantity of heroin in the Plaintiffs' home which was later "discovered" by the Fourth Defendant; (h) at approximately 1pm on 24 June 1985, took the First Plaintiff by force to the Plaintiffs' office together with other members of the JTF, including the Third and Fourth Defendants, in purported execution of a search warrant and thereafter participated in the verbal and physical abuse of the First Plaintiff… (including by himself, and in his presence by the Third Defendant and Fourth Defendants) and participated in the planting of a quantity of heroin at the Plaintiffs' office which was later "discovered" by another member of the JTF; (i) was aware that the total combined weight of the heroin allegedly found at the Plaintiff's home and office was 84 grams; (j) took the Plaintiffs to the Remington Centre, Sydney (being premises controlled and operated by the Second Defendant); (k) together with the Third Defendant interrogated the First Plaintiff for approximately 10 hours; (I)-(o) (during the interrogation threatened the First Plaintiff, further intimidated him by words, tone and gestures, did not inform the First Plaintiff as to why he was being detained and condoned the Third Defendant further intimidating the First Plaintiff); (p) was aware that the Second Plaintiff was interrogated by the Fourth Defendant, the Fifth Defendant and Southwell; (q) together with the Third Defendant, drafted and/or procured a record of interview which contained a fabricated admission to the effect that the First Plaintiff had planned and participated in drug trafficking and directed the First Plaintiff to sign that record of interview; (r) knew that prior to signing the records of interview, the First Plaintiff was not given the opportunity of reading the record of interview containing the fabricated admission; (s) did not caution the First Plaintiff nor give him any warning about how his record of interview might be used against him in any criminal proceedings and was aware that no such warning was given by the Third Defendant; (t) was aware that the Second Plaintiff had been threatened during her interrogation and had signed a record of interview containing a fabricated admission under the same conditions as applied to the First Plaintiff as described in sub-paragraphs (r) and (s) herein; and (u) agreed in and endorsed the decision to institute the charges against the Plaintiffs by reason of the collective nature of meetings, information-gathering and decision-making of the JTF in relation to the Plaintiffs. Particulars of involvement of Haken in the maintenance of the charges . 29. Haken (a) participated in the committal and trial of the Plaintiffs in relation to alleged drug trafficking from 25 June 1985 to about 9 March 1987 by giving evidence against both the Plaintiffs; (b) on or about 26 June 1985, Haken and the Third Defendant fabricated a dialogue between the First Plaintiff, Haken and the Third Defendant in which the First Plaintiff was said to have made oral admissions during the interrogation on 24 June 1985 to the effect the First Plaintiff had planned and participated in drug trafficking; (c) on the same day, Haken drafted a statement in which he included the fabricated dialogue and the fabricated admissions of the First Plaintiff ("Haken's Statement"); (d) later, at some time after 26 June 1985, Haken then made notes in his official notebook stating that the First Plaintiff had made oral admissions during the First Plaintiffs Interview to the effect the First Plaintiff had planned and participated in drug trafficking and dated those notes as if they had been made during the First Plaintiff's Interview; (e) knew that his and the Third Defendant's Statements and Notebook Entries were false representations; (f) was aware that the Fourth and Fifth Defendants' Statements and Notebook Entries were false representations; (g) was aware that the tape recordings obtained from listening devices in the Plaintiffs' home on 24 June 1985 and the listening post logs in relation to that date had been tampered with (as set out in sub-paragraph 31(f) below); (h) during the committal proceedings Haken: (i) gave evidence in accordance with Haken's Notebook Entry; (ii) did not disclose to the Commonwealth DPP or the Court: (A) the true circumstances under which the First Plaintiff's admission had been obtained; (B) his knowledge as to the true circumstances under which the Second Plaintiff's admission had been obtained; (C) that his Statement and Notebook Entry were false and false to his knowledge; (D) that the Third, Fourth and Fifth Defendant's Statements and Notebook entries were false; (iii) failed to give evidence to the effect that the tape recordings obtained from listening devices in the Plaintiffs' home on 24 June 1985 and the listening post logs in relation to that date had been tampered with (as set out in sub-paragraph 31(f) below); (iv) failed to give evidence that he knew that the heroin found at the Plaintiff's home and office had been planted; (i) during the trial, gave evidence in similar form to that described in sub-paragraph (h) (i) to (iv) herein; (j) agreed in and endorsed the decision to maintain the charges against the Plaintiffs by reason of the collective nature of meetings, information-gathering and decision-making of the JTF in relation to the Plaintiffs." 13 During the course of argument Counsel sought to make some further amendments to the proposed pleading. One was to substitute for the words "decision to maintain" in paragraph 29(j) the word(s) "maintenance (of)" and to make similar changes in corresponding paragraphs. A second was to insert in the headings to paragraphs 28 and 29 before the words "the charges", the words "each of". A third was in paragraph 28(a) to move the words "from about 28 November to June 1985" to the beginning of that paragraph. It was not suggested that these changes caused any difficulty to the Second Defendant and I approach the matter as if the proposed pleading incorporated these changes. 14 The First and Fifth Defendants consent to the proposed amended pleading being filed. The Third and Fourth Defendants have played no active role in the application or in correspondence that preceded it but the Second Defendant opposes the application contending, inter alia:-

(a) that the pleading discloses no reasonable cause of action or has a tendency to cause prejudice or delay in the proceedings because the plaintiffs have failed to properly identify the prosecutor at the relevant time that an act of prosecution was carried out (both with respect to institution and maintenance) in respect of each of the charges;

(b) the charges have simply been bundled and rolled up altogether;

(c) accordingly the Court cannot focus on the mind of the prosecutor at the time to clearly identify what that person had available and took into account when the act of prosecution was done with respect (to) each of the charges

(d) the test whether the prosecutor had reasonable and probable cause to do what he did requires that there be identified a person in respect of whom the criteria can be applied for each of the charges, relied on at the time of an act of prosecution be this the initiation, activity in commencing, or maintaining the prosecution;

(e) mere assistance as a witness is not enough, such a person being entitled to immunity - Cabassi v Vila (1940) 64 CLR 130 at 140-141; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 18-19;

(f) the assertions in the proposed pleading that members of the New South Wales police force were prosecutors merely by reason of the matters pleaded without more is wrong;

(g) the particulars of involvement by the New South Wales police officers in procurement and maintenance of the charges do not demonstrate that any one of them played an active role in the institution or maintenance of the proceedings;

(h) the allegation that the various police offices for whom the Second Defendant is responsible agreed in and endorsed the decision to institute (all of) the charges does not demonstrate who made the decision and upon what information so that the Court can examine whether there was an absence of reasonable and probable cause and malice;

(i) there is no allegation in the proposed pleading that the unidentified person said to have made the decision to prosecute or maintain the prosecution acted on or was influenced by anything done by, e.g Mr Haken;

(j) the proposed pleading fails to properly identify the decision maker;

(k) the proposed pleading demonstrates that some unidentified person made a decision to proceed with only some charges and institute a fresh charge yet the pleading alleges a maintenance of all charges by the police officers for whom the Second Defendant is allegedly responsible;

(l) the proposed pleading does not identify which of the matters specified in paragraphs 28 and 29 apply or are relied on in respect of each of the charges referred to. 15 A number of these arguments seem to presuppose that the Plaintiffs were required to identify in some fashion some official or person who formally or finally made, in respect of each charge, the decision to prosecute or continue the prosecution so that one would be able to identify what that person, in making that decision, took into account. Certainly in some cases, that may well be required. However in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379, in a passage accepted by the Second Defendant as correct, Dixon J said:- "It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority…. But if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible… Further, the privy council has said in a judgment delivered by Lord Dundedin:- "In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the work cannot be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. If that is done and trouble caused an action will lie"." 16 There is nothing in that statement to require identification of the (or "a") prosecutor in circumstances where the person accused of malicious prosecution has induced a prosecution by some official, by the provision of false information or in one of the ways otherwise referred to. Certainly the identification of such a prosecutor may assist in enabling more ready definition of the information that led to a prosecution but there is no fundamental reason why a conclusion as to the information used or whether any particular information was significant or determinative in a decision to prosecute cannot be arrived at as a matter of inference. Accordingly, the Second Defendant's complaints, to the effect that there has been no identification of a prosecutor and thus no ability to identify on what material a decision to prosecute was made, provide no valid basis for rejecting the proposed pleading. 17 On the other hand, central to a claim based on the principle embodied in the passage, "But if the discretion is misled … are responsible" is that the false information or other impropriety of the party sued was relied on by whoever exercised the discretions to prosecute and to maintain the prosecution and was material to each of those decisions. No such allegation is made and the contention that Haken "agreed in and endorsed the decision to institute the charges …" however generously interpreted, cannot be regarded as going far enough in this connection. Accordingly, if one were to conclude that the only basis of the Plaintiff's claim was the provision of information to some other "prosecutor" who exercised the relevant discretions, the pleading would be deficient. 18 (That is not of course to suggest that much more would be required. I do not accept that the Plaintiffs have to identify the particular person who was the decision maker. Experience gained in this Court makes it inconceivable that evidence of the nature described in the proposed pleading, prepared by a police officer intimately involved in the investigation, would not be of significance to whoever made a decision to prosecute or maintain the proceedings. Of course, it would remain necessary to allege that significance.) 19 But in this area, the term "prosecutor" is not restricted to only persons who make a final decision to prosecute and/or in the capacity of a party to initiate proceedings - see Pandit Gaya Parshad Tewari v Sardar Bhagat Singh (1908) 30 All 525; 24 TLR 884. The term encompasses anyone who was actively instrumental in putting the law into motion - Davis v Gell (1924) 36 CLR 275 at 282; Danby v Beardsley (1880) 43 LT 603 and, as the reference in the former case to the question, "Who was the prosecutor?" makes clear, the issue is one of fact. Furthermore, there may be more than one such person in any particular case - Johnston v ANZ Banking Group Ltd [2006] NSWCA 218 at [37]. Vitally, the proposed pleading asserts that the persons named in paragraph 27 were prosecutors.

20 A further basis for largely rejecting the submission that the Plaintiffs have not identified a prosecutor lies in the assertion in the proposed pleading that the Third Defendant was the informant on all (of the original) charges. The associated claim that he was involved in the procurement of the charges (i.e. before they were preferred), and agreed in the decision to institute the charges, combined with the allegations of earlier manufacture of false evidence and extensive involvement with the Third Defendant (who according to the proposed pleading was the informant) in that connection is enough, if established by evidence, to permit of the conclusion that Haken was, in his own right, a prosecutor, even if not the only one. 21 As has been said, the first three of the charges on which the Plaintiffs went to trial accord with the first three of these original charges save and except that, in the case of the second charge, the quantity was downgraded to "trafficable". For pleading purposes, I regard that difference as immaterial - See Leibo v Buckman (1952) 2 All E R 1057 at 1071. 22 Of course this (virtual) identity between 3 counts of the indictment and 3 of the charges originally laid against each plaintiff does (or at least may) not apply in the case of the fifth count and does not apply in the case of the fourth count (notwithstanding the features that count has in common with some two of the charges originally laid. However, in light of the width of paragraphs 27 to 29 of the proposed pleading, at least so far as Haken is concerned, I regard the omission of reference to anyone else who may have preferred the charge as insignificant. Whether, so far as the fourth and fifth counts are concerned, the current formulation of the pleading is narrower than the Plaintiffs may ultimately wish to rely on is not a matter of present relevance. 23 In saying what I have, I do not ignore the fact that, to succeed in his action, the Plaintiff will need to prove a causal link between the actions of Haken to which he refers and the institution and/or the maintenance of one or more of the charges referred to. Certainly, one way of doing so is to call express evidence to the effect that the person who was formally or finally responsible for their institution or continuation was moved to act, at least in part, by the actions of Haken. However, there is no reason why the causal link cannot be proved as a matter of inference from for example, the terms of the admissions attributed to the Plaintiff by Haken or those terms combined with the "discovered" heroin and (possibly) evidence as to the practice of preparation of briefs for whatever organisation laid the charges. 24 Nor is there any validity in another criticism that the proposed pleading does not qualify the allegation of maintenance of all charges. Certainly some of those originally preferred would seem to have come to an end at some time and once that occurred, the Defendants did not maintain them. However, there was clearly a time, at least up until the conclusion of the committal proceedings and probably until the Plaintiffs were put on their trial or the indictment preferred, when all were being maintained and I see no embarrassment in the fact that the proposed pleading does not claim a particular date when some of the charges terminated and expressly limit the claim of maintenance to an earlier period. 25 Another objection to the proposed pleading was that the assertions in paragraphs 28(a) and 28(b), being assertions as to Haken's actions or knowledge in or after November 1984, could have no bearing on the institution of the charges concerning events in March, April or June 1984. Insofar as this objection relies on the events occurring before any actions by or knowledge of Haken - and that was one of the bases on which it was put - it must be rejected. Haken could well, after November, have inspired or maintained charges concerning earlier events. However, I find it impossible to see how Haken's participation and awareness as alleged in those paragraphs can tend to prove any involvement in procurement (or maintenance) of the charges. 26 Paragraphs 28(a) and 28(b) are referred to, directly or indirectly, in other paragraphs of the proposed pleading, e.g. 36(a), 38(a), 40(a), and 42(a). Paragraph 28(b) has a somewhat parallel allegation in paragraph 42(b). None of these further paragraphs justify paragraphs 28(a) and (b) being permitted. 27 An objection taken to the terms of paragraph 28(u) was that agreeing in and endorsing a decision to institute charges could not amount to a particular of procurement because, by definition, a decision to prosecute had already been made. It was further submitted that no facts had been pleaded to establish that the information-gathering or decision-making referred to in that paragraph were of a collective nature. Though in slightly different terms, paragraph 29(j) seemed to be the subject of similar objections. 28 It is clear that part of the Plaintiffs' case is that a number of members of the JTF, named in the proceedings were, relevantly, prosecutors and jointly involved in the decision to institute what is said to have been the malicious prosecution of the Plaintiffs. The expression "agreed in and endorsed the decision" when no time is specified is clearly susceptible of the construction that the Second Defendant seeks to put on it, viz after the decision was made, and possibly after the charges were instituted, the agreement and endorsement occurred. The second criticism concerning the absence of facts to establish that the information-gathering or decision-making referred to in that paragraph were of a collective nature is also valid. Accordingly, paragraph 28(u) in its current proposed form should not be allowed. 29 Although paragraph 29(j), directed to the maintenance of the charges, is in a slightly different situation the paragraph is also susceptible of the interpretation that the agreement and endorsement was of actions and events in the past. This also should not be allowed. However, the Plaintiffs should be entitled to amend if they wish to contend that that Haken (and some or all of the others named in paragraph 27) jointly procured and maintained the charges. 30 I reject also as a valid objection to the pleading the complaint set out above in sub-paragraph 14(b) and (l). Part 14 Rule 8 requires that a pleading be as brief as the nature of the case allows. Subject to two matter to which I will come, paragraphs 28 and 29 allege matters of fact to which the Second Defendant can satisfactorily plead as those paragraphs stand. From the pleading point of view, no benefit would accrue were the Plaintiff required to do as the Second Defendant suggests. Nor as a practical matter would there be any benefit at trial. Although there may well be scope for some argument, the strong probability is that by the end of the hearing it will be fairly obvious to all which matters in paragraphs 28 and 29 do or do not have any bearing on particular charges. Specification now will achieve nothing except to create a (weak) stick with which the Defendant may try to beat the Plaintiff at the hearing if the Plaintiff tries to rely in the case of any charge on and one or more sub-paragraphs. 31 The two matters to which I referred are these. The first concerns the headings of paragraphs 28 and 29, which are calculated to lead to the view that what follows under those headings are merely particulars and as such matters to which the Defendants are not required to plead. During the course of argument, counsel for the Plaintiff indicated he did not want the matters so treated. Upon the basis that pleadings should, so far as practicable define the issues between the parties I do not regard that as a satisfactory state of affairs and am not inclined to allow the proposed pleading in that form. I acknowledge that those heading do help to define what the Plaintiffs rely on in respect of the distinct issues of procurement and maintenance and it may be necessary for some amendment or addition to paragraph 27 to accommodate my view. Secondly, the absence of any specification of the time in many of the sub-paragraphs of paragraph 28 is calculated to be embarrassing or inspire a request for particulars and should be dealt with now as best it can be. 32 In these circumstances, the appropriate order is that the Plaintiffs have liberty to amend the Statement of Claim in accordance with these reasons and, subject to what I have said, in accordance with, the "Amended Statement of Claim" being annexure A to the Further Amended Notice of Motion filed on 10 October 2008. 33 In case there should be any further or other difficulty yet unresolved, all parties should have liberty to apply in respect of the form of any Amended Statement of Claim on 7 days notice. 34 Prior to this application coming on for hearing, there appear to have been a deal of correspondence and other inter-reaction concerning the original Statement of Claim and amendments. There was a Notice of Motion issued by the First Defendant dated 3 May 2006 and I was informed that the Plaintiffs have agreed to pay the First Defendant's costs of an incidental to that motion and the costs, up to 4 November 2008, of the Plaintiff's own motion to amend. 35 The Second Defendant also filed a Notice of Motion on 5 May 2006, to strike out the original Statement of Claim. The Plaintiffs agreed that the Second Defendant should have its costs of that motion up until 4 November 2008. 36 The Plaintiffs submitted that, if successful, they should have the costs of their motion to amend, without limitation as to date.

37 In opposition to that claim, counsel for the Second Defendant handed up a 13 page summary of objections that had been raised in the correspondence and Defendant's Notices of Motion extending as far back as February 2006. A skim perusal of the extent of those documents and the Court file is suggestive of an extraordinary waste of effort and cost over this period, during which many notices of motion apart from that before me were filed. I was not taken in detail through this material. Clearly some of it was the subject of proceedings before officers of the Court and without far more debate than was conducted before me, it is not appropriate that I seek to ascertain the factors leading to it or explore any orders for costs made during the intervening period. I do not intend to deal with the costs incurred during that period but see no reason to think that that earlier documentation bears on who should pay the costs associated with the Application as made in the Amended Notice of Motion of 10 October 2008. 38 By far the largest part of the dispute before me revolved around the argument that the Plaintiffs were required to nominate some other "prosecutor". On that argument the Plaintiffs were successful and it seems to me that an appropriate order is that the Plaintiffs have the costs of and incidental to the Application before me, including the costs of and incidental to the Notice of Motion of 10 October 2008. I would not regard those costs however as extending back prior to the preparations for and the drafting of that Notice of Motion. 39 Of course, I do not intend to interfere with the normal rule that the Plaintiffs should pay the costs of the amendments I am giving leave to make 40 The First Defendant also submitted that if the Plaintiffs were successful in the application before me, the Second Defendant should be ordered to pay the First Defendant's costs of the day before me. It was submitted on the First Defendant's behalf that, because applications to amend sometimes involve, in the course of their determination, "argi-barji" and compromise, its presence was appropriate so that its view could be sought on any position intermediate between that of the Plaintiff and Second Defendant, without the necessity of adjournment. An example was provided by the further amendments that counsel for the Plaintiffs raised during the course of debate. 41 These days the hearing of applications to amend often does result in parties seeking, or accepting, something different from the positions adopted at the commencement of a hearing. In the circumstances of this case, it is appropriate that the Second Defendant pay the First Defendants' costs. It is appropriate to limit those to the costs of and incidental to the hearing before me. 42 Accordingly, the orders I make are:- (i) The Plaintiffs do have liberty to amend the Statement of Claim in accordance with these reasons and, subject thereto, the "Amended Statement of Claim" being annexure A to the Further Amended Notice of Motion filed on 10 October 2008. (ii) Liberty to apply to all parties in respect of the form of any Amended Statement of Claim on 7 days notice. (iii) Order the Plaintiffs to pay the First Defendant's costs of an incidental to the First Defendant's Notice of Motion of 3 May 2006 and the costs, up to 4 November 2008, of the Plaintiff's Further Amended Notice of Motion of 10 October 2008. (iv) Order the Plaintiffs to pay the Second Defendant costs up until 4 November 2008 of its Notice of Motion filed on 5 May 2006 to strike out the original Statement of Claim. (v) Order that the Second Defendant pay Plaintiffs' costs of and incidental to the Application before me, including the costs of and incidental to the Notice of Motion of 10 October 2008, providing however that those costs shall not extend back prior to the preparations for and the drafting of that Notice of Motion. (vi) Order that the Second Defendant pay the First Defendants' costs of and incidental to the hearing before me.

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