Sved & Anor v Di Blasio & Ors S148/1996 [1997] HCATrans 51 (13 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S148 of 1996

B e t w e e n -

GEORGE SVED and BARBARA OLGA SVED

Applicants

and

LUIGI DI BLASIO and GUISEPPE DI BLASIO

First Respondents

ARTHUR GODDARD

Second Respondent

DINAH LYNNE GODDARD

Third Respondent

COUNCIL OF MUNICIPALITY OF WOOLLAHRA

Fourth Respondent

Application for costs

BRENNAN CJ

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1997, AT 11.08 AM

Copyright in the High Court of Australia

______________________

MR S.J. MOTBEY: May it please the Court, I appear for the applicants on the notice of motion. (instructed by Jenkins & Associates)

MR M.T. McCULLOCH: If the Court pleases, I appear for the Council who is the respondent on the notice of motion. (instructed by Phillips Fox)

BRENNAN CJ: The Deputy Registrar certifies that he has been informed by the solicitor for the first respondent and the solicitor for the third respondent that the first and third respondents will not be represented at the hearing and will abide by any order of the Court save as to costs. He further certifies that he has been informed by the solicitors for the first, second and third respondents that the respondents will not be represented at the hearing and will abide by any order of the Court save as to costs. There seems to be a certain duplication in that.

MR MOTBEY: There is one procedural matter that perhaps should be noted along with those matters and that is that as between the applicants and the third respondent, Dinah Goddard, although a notice of discontinuance has been filed, there is to be no order as to costs. That is a consent agreement that was arrived at.

BRENNAN CJ: As between the applicant and the three - - -?

MR MOTBEY: As between the applicants and the third respondent, there is to be no order as to costs.

BRENNAN CJ: And the application is to be dismissed?

MR MOTBEY: Yes.

BRENNAN CJ: By consent?

MR MOTBEY: What has actually occurred is the applicants have filed a notice of discontinuance but what was agreed - and this was before the Council decided to discontinue - was that the application was to be dismissed as against the third respondent with no order as to costs.

BRENNAN CJ: And it is to be dismissed as against the first and second respondents?

MR MOTBEY: With costs.

BRENNAN CJ: With costs.

MR MOTBEY: It is to be discontinued with costs.

BRENNAN CJ: With costs to be paid by them to you?

MR MOTBEY: Costs to be paid by us to them.

BRENNAN CJ: I see.

MR MOTBEY: So, there is no costs as against Dinah Goddard but we acknowledge that in view of our abandonment of our application, we have to pay the costs of the first respondents and the costs of the second respondent.

BRENNAN CJ: Very well. Is there any occasion for the making of an order to give effect to that?

MR MOTBEY: I think it probably is necessary for the Court to make an order to give effect to our agreement under which the third respondent does not obtain her costs. Otherwise, the Rules would automatically give her a costs order consequent upon the filing of a notice of discontinuance. So, from a procedural point of view, the only order that we would ask for, additional to what follows automatically, is an order that as between the applicants and the third respondent, there be no order as to costs.

BRENNAN CJ: And you give us your undertaking that those are the terms of the agreement?

MR MOTBEY: I certainly do, yes, your Honour.

BRENNAN CJ: Upon that undertaking, the order will be made.

MR MOTBEY: If it please the Court.

BRENNAN CJ: Now, what is left?

MR MOTBEY: What is left is our notice of motion filed 11 February, the substance of which the Court can see in paragraph 4 of the claims for relief. What we seek is that the Council be ordered to indemnify the applicants in respect of the costs; that they must pay the first respondents and the second respondent.

BRENNAN CJ: Why?

MR MOTBEY: Perhaps the best way to explain that is to ask the Court to look at paragraph IVA of our written submissions which were filed on 31 January. Perhaps I should summarise the position, your Honours.

BRENNAN CJ: Whatever might be the merits of this, the Council was not a party against whom you sought special leave.

MR MOTBEY: That is correct but we were a party against whom the Council sought special leave. We were brought to this Court initially by the Council who wished to challenge in this Court the verdict which resulted in these applicants, the Sveds, being entitled to recover from the Council. Now, what we say - - -

BRENNAN CJ: I understand the background to it but, I mean - - -

McHUGH J: You have withdrawn your application. You could have proceeded with your special leave application, obtained special leave and have an appeal allowed against the respondents. How could you ask for costs against the Council then? You have decided to withdraw your application.

MR MOTBEY: We would not have brought any application but for the fact that Council brought an application against us.

McHUGH J: I appreciate that. That was your choice. You did not have to.

MR MOTBEY: Your Honour, in a sense, in a practical sense, we did have to because if we did not seek leave ourselves - - -

McHUGH J: I can understand why you wanted to bring an action against the people which you have now discontinued against, but you have elected not to pursue that action. Now, you want the Council to pay those costs.

MR MOTBEY: Because we say it was the Council's impetuous activity of bringing us to this Court - - -

McHUGH J: It was not impetuous. You do not get anywhere in this Court using words like "impetuous". It was not impetuous. They sought special leave to appeal against the verdict. They have withdrawn theirs.

BRENNAN CJ: You get your costs against them for what they did. You chose to take a separate proceeding.

MR MOTBEY: We chose to but we really, in a - - -

BRENNAN CJ: And you chose to because you wanted to protect your place.

MR MOTBEY: That is right.

BRENNAN CJ: Well now, you want them to pay for that.

MR MOTBEY: That is right because we now have no need, on a practical level, to proceed with this special leave application. In fact, it would simply work against us. There is an affidavit which I was intending to read.

BRENNAN CJ: What is the forensic basis on which you can seek this order? Just on the basis that you would not have done it if they had not started theirs?

MR MOTBEY: And they have pushed us, in effect, into taking litigation which otherwise we would not have pursued and then abandoned it. I can say nothing more.

BRENNAN CJ: We need not trouble you, Mr McCulloch. There is no basis for the granting of the order applied for. Accordingly the application is dismissed.

MR McCULLOCH: I would ask for an order for costs.

BRENNAN CJ: You were brought here on notice of motion, were you?

MR McCULLOCH: Yes, your Honour.

BRENNAN CJ: What do you have to say about that, Mr Motbey.

MR MOTBEY: I cannot say anything, your Honour.

BRENNAN CJ: The application will be dismissed with costs.

AT 11.18 AM THE MATTER WAS CONCLUDED