Piscopo v NOT Lawyers

REASONS FOR JUDGMENT 1 At the conclusion of argument, I indicated to Counsel for the applicant that I was minded to accept the undertakings now being offered by Ms Cole and by the respondents as constituting a satisfactory solution to the unfortunate sequence of events which led to the applicant instituting the current proceedings. 2 Counsel for the applicant then informed me that he did not require any Reasons for Judgment if that was the course which I intended to adopt. Counsel for the respondents and Ms Cole took the same position. 3 Undertakings to the Court were then offered by Ms Cole and by the respondents. These undertakings were accepted by me. I then ordered the proceedings otherwise be dismissed. 4 Counsel for the respondents then sought an order for costs against the applicant. In particular, she sought an order that the applicant pay the respondents' costs of and incidental to the proceedings on an indemnity basis from the inception of the proceedings or, alternatively, from 4 December 2008. 5 Counsel for the applicant accepts that the applicant must pay the respondents' costs of and incidental to the proceedings but submits that he should be ordered to do so only on the usual basis, that is to say, on a party/party basis. 6 Counsel for the respondents submitted that the proceedings were always doomed to fail because there was no principle that required the clients for whom she appears, or indeed, Ms Cole, to go further than the undertakings which had been offered prior to the commencement of the proceedings. She also submitted that, in the result, the applicant had failed to obtain any relief in addition to the relief embodied in the undertakings which were offered before the proceedings were commenced. 7 Counsel for the respondents also pointed to some evidence to the effect that related proceedings are being funded by two gentlemen, Mr Brooks and Mr James as material that suggests that the proceedings have been brought for an ulterior purpose. She submitted that, for this additional reason, indemnity costs based upon the principle in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 should be ordered and should be ordered in respect of the whole proceedings. 8 It seems to me that more evidence would be required if I were to accept that these proceedings had been brought for an ulterior or extraneous purpose. I am not prepared to order indemnity costs on this basis. However, in my view, the proceedings could have, and should have, been resolved before today along the lines of the solution which was ultimately imposed by me earlier today. That solution had, in substance, been offered by the respondents on 4 December 2008. Indeed, much of what was offered on 4 December 2008 had been previously offered. 9 In those circumstances, I am of the view that the respondents are entitled to indemnity costs as and from 5 December 2008. 10 Therefore, the orders of the Court will be that the applicant is to pay the respondents' costs of and incidental to the proceedings (as taxed or agreed) on a party/party basis up to and including 4 December 2008 and thereafter on an indemnity basis. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.