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File Number(s): 2025/00165949; 2025/00165964

JUDGMENT

1. I first heard these two matters on 24 July 2026 after they were, together, referred to me, as duty judge, by the Common Law Registrar. The respective Plaintiffs in each proceeding (collectively, the Plaintiffs), made allegations against the First Defendant, Max Fisher. It is unnecessary to address the nature of those claims for the purpose of these reasons.

2. There was a second directions hearing before me on 31 July 2026. I entered the orders sought in the proposed consent judgments at that second directions hearing. On that occasion, none of the Second, Third or Fourth Defendants opposed entry of the proposed consent judgment. The outstanding dispute was the question of costs for one of the two directions hearings on the basis that the hearing on either 24 or 31 July 2026 was wasted and caused the Plaintiffs and First Defendant to incur costs. I made no order as to costs. What follows are my reasons for doing so.

3. The following salient facts are drawn from the affidavit of Ms Carnuccio, affirmed on 23 July 2026 and read on 24 July 2026.

4. The Plaintiffs filed their respective Statements of Claim on 30 April 2025.

5. Kerry Henson, the Plaintiff in one of the proceedings, filed an Amended Statement of Claim (the ASOC) on 30 June 2025. On 11 March 2026, the First Defendant filed a Notice of Motion in the Henson proceedings seeking dismissal of the Plaintiffs’ claims on the basis that allegations against him in the Statement of Claim were not contained in the ASOC.

6. Leslie Sonter, the Plaintiff in the other proceedings, on 7 July 2026, prepared a proposed Amended Statement of Claim. In correspondence her solicitors informed the Defendants indicated that the allegations against the First Defendant would not be included in the proposed Amended Statement of Claim.

7. On the afternoon of 23 July 2026, proposed consent judgments were filed in both proceedings by which the Plaintiffs each agreed that judgment on their claims was to be entered for the First Defendant with costs.

24 July 2026

8. On 24 July 2026, when both matters were listed before the Common Law Registrar, the Plaintiffs and First Defendant asked the Court to enter the orders in the proposed consent judgments. The Second, Third and Fourth Defendants opposed that course of action. It was in those circumstances that the Common Law Registrar referred the two matters to me.

9. Oral submissions were primarily made by Ms Graham of Counsel, who appeared for the First Defendant, and Ms Carnuccio, solicitor, who appeared for the Third Defendant. Mr Elliott of Counsel, who appeared for the Plaintiffs, was, unsurprisingly, allied with the First Defendant in seeking the Court’s imprimatur in having the orders made that day.

10. Ms Carnuccio, as coryphaeus for the Second, Third and Fourth Defendants, opposed entry of judgment as sought by the Plaintiffs and First Defendant on two grounds. Those grounds were:

11. the Third Defendant needed to preserve its right to bring a future cross-claim against the First Defendant. In support of this submission, Ms Carnuccio relied upon James Hardie & Coy Pty Ltd v Seltsam Pty Limited (1998) 196 CLR 5; [1998] HCA 78 (Seltsam). Mr Carnuccio submitted that a final judgment entered by the Court in favour of the First Defendant could, thereafter, absolve him of liability for any allegations made by the Plaintiffs, thus precluding any cross-claim being filed against him; and

12. the Third Defendant had only learned of the consent judgment the previous afternoon and needed time to obtain Counsel's advice, especially in circumstances where records, which had been subpoenaed from Western Australia, were only accessed on 16 July 2026.

13. For those reasons, the Second to Fourth Defendants sought a two-week adjournment for the purposes of assessing the subpoenaed material and each assessing whether they would file a cross-claim.

14. In response, Ms Graham maintained:

15. that the Plaintiffs’ respective ASOC had removed the substantive allegations against the First Defendant;

16. Seltsam was distinguishable because, in that matter, a cross-claim was already on foot and there was also an agreement between the plaintiff and a cross-defendant. Here, there was no such cross-claim despite such a course being available for over a year. Furthermore, Ms Graham continued, it was probable that, absent substantive allegations against the First Defendant, no cause of action pursued through a cross-claim could arise;

17. the Second to Fourth Defendants had been on notice of the First Defendant’s position through correspondence since at least 10-16 July 2026; and

18. the Western Australian records were irrelevant because the First Defendant had always resided in New South Wales and the allegations related only to NSW conduct.

19. After the parties’ submissions on 24 July 2026, I considered it appropriate to stand the matters over until 31 July 2026. I directed the Second, Third and Fourth Defendants to inform the Court on or before that date whether they would pursue any cross-claim.

31 July 2026

14. One week later, when the matters were next before me, Ms Carnuccio confirmed that the Third Defendant would not file any cross-claim and consented to entry of the consent judgments. The Second and Fourth Defendants adopted the same position.

15. From there, the dispute shifted entirely to costs. The Plaintiff and First Defendant sought an order that their costs were to be paid by the Third Defendant due to the unnecessary appearance on 31 July 2026 caused by the Defendants not consenting to entry of the consent judgment on 24 July 2026.

16. The thrust of Ms Graham’s argument was that the Third Defendant's active objection on 24 July 2026 was the sole reason for the additional directions hearing. The Second, Third and Fourth Defendants opposed such an order, asserting that they had only learned of the consent judgment on the afternoon of 23 July 2026 and they would have resolved the matter earlier had the First Defendant provided greater notice.

17. On the application, Ms Graham tendered a letter. That letter, dated 29 July 2026, was sent to the Second to Fourth Defendants. It set out at length the developments in the matter leading up to the 24 July 2026 listing before the Common Law Registrar. It noted that the First Defendant had filed his Notice of Motion seeking summary dismissal and stated that the Plaintiffs were prepared to discontinue the proceedings against him. That course was not acceptable to the First Defendant. He replied that nothing short of judgment in his favour would suffice.

18. This information, having been conveyed to the Second to Fourth Defendants on 16 July 2026, was the key plank in Ms Graham’s argument. It was said to demonstrate that the Second to Fourth Defendants were, from 16 July 2026, aware that the First Defendant insisted on a judgment in his favour. Therefore, the argument went, those Defendants should not have been surprised when they learned, on 23 July 2026, that such a consent judgment had come to pass such that they should have been prepared to consent to it the next day.

19. I do not accept that argument.

20. For reasons which I need not expatiate upon here, there is a considerable difference between proceedings being discontinued and judgment being entered. Ms Graham conceded that the Second to Fourth Defendants only became aware of the proposed consent judgment on 23 July 2026.

21. Whilst it is true that the Second to Fourth Defendants were aware that a judgment was a “deal-breaker” for the First Defendant, I do not consider that the Defendants had adequate time to contemplate properly and take instructions (between 23 July 2026 and the 24 July 2026 listing before the Common Law Registrar) with respect the consent judgments. I consider that the Second to Fourth Defendants were justified in seeking time fully to consider this new development. I hasten to add that I make no criticism of the Plaintiffs or First Defendant for serving the proposed consent judgments on 23 July 2026; the documents had been signed that same day.

22. There is force in Ms Graham’s arguments that Seltsam had no application, that the Plaintiffs and First Defendant did not need the other Defendants’ consent, and that no cross-claim was feasible. However, the Second to Fourth Defendants were entitled to adequately contemplate their respective positions. Once they were afforded that opportunity, it was well used. They all consented to entry of the proposed consent judgments and indicated that they had no intention of filing any cross-claim.

23. For these reasons, I do not consider that the costs which the Plaintiffs and First Defendant incurred by the matter being stood over for a week were caused by any unjustified or unreasonable position adopted by the Second to Fourth Defendants. I consider that all parties, on both 24 and 31 July 2026, acted reasonably. For this reason, it would be unwarranted to impose costs against the Second to Fourth Defendants in favour of the Plaintiffs and First Defendant.

Orders

24. It is for the foregoing reasons that I made the following order:

25. No order as to costs.

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