Downey v Acting District Court Judge Boulton (No 6)

THE COURT : On 15 September 2010 the Court delivered its principal judgment in this matter. The proceedings were dismissed and the applicant was ordered to pay the costs of the informants, being the second and fifth respondents in the proceedings. The fourth respondent, the State, also resisted the relief sought by the applicant. The active respondents properly divided the issues to be addressed between themselves. The State sought its costs in the event that the application was dismissed. Through an oversight that application was not determined and the State filed a timely motion seeking costs. The outstanding issue should now be resolved by granting the relief sought by the State in its motion.

The applicant filed Written Submissions opposing the making of the order sought on three grounds.

First, it was said on behalf of the applicant that it was apparent from the Written Submissions filed by the fourth respondent that the RSPCA (the second respondent) and the fourth respondent had made an arrangement “to efficiently divide up the submissions and legal work before the Court of Appeal” and that it would be unfair to the applicant if unqualified orders for costs were made in favour of both the RSPCA and the fourth respondent because the RSPCA might recover costs for work that it had not in fact done. The Court does not accept this submission. The orders for costs will only entitle the parties in whose favour they are made to recover costs in respect of work that has been done.

Secondly, the applicant submitted that the matter raised issues of public importance to the law of New South Wales. This is correct but that fact does not of itself entitle the applicant, who unsuccessfully raised the issues, to avoid paying the costs of all active parties to the proceedings.

Thirdly, the submissions asserted that the applicant’s “life’s work has been destroyed, at the age of 75” and that she “has suffered enough”. Considerations of this kind are insufficient in themselves to enable a losing party to avoid orders for payment of costs.

As a result, there is no reason why the error in the Court’s order should not be corrected pursuant to the “slip rule”: Uniform Civil Procedure Rules r 36.17. The applicant’s submissions contended that if the Court took this view the fourth respondent should nevertheless pay the costs of its Notice of Motion in any event. We do not agree. It should have been apparent to the applicant’s advisers from the terms of the Court’s judgment that there had been a mistake in the orders. There was no reasoning in the judgment as to why one of the successful parties, the fourth respondent, should be deprived of its costs. Indeed, as indicated above, the judgment stated in general terms that the applicant, as the losing party, should pay the costs of the proceedings (see [9] and [177]). By implication this extended to the costs of all active respondents.

Counsel for the applicant suggested that contact between solicitors, rather than simply between counsel, was the appropriate means by which the consent of the applicant to correction of the Court’s order should have been sought. This point cannot be regarded as of any significance as, when the fourth respondent filed its Notice of Motion, the applicant opposed the making of the order sought in it. The result was that the fourth respondent had to file Written Submissions, and submissions in reply to those filed by the applicant. Further, it has of course become necessary for the Court to prepare and deliver this judgment. The applicant’s opposition to the correction of the Court’s orders of 15 September 2010 was unreasonable and the applicant should therefore pay the fourth respondent’s costs of its Notice of Motion filed on 24 September 2010. The Court so orders. It further orders that the applicant pay the fourth respondent’s costs of the proceedings.