Registered Clubs Association of New South Wales v Stolz (No 3) [2021] FCA 1557

Federal Court of Australia

Registered Clubs Association of New South Wales v Stolz (No 3) [2021] FCA 1557 File number: NSD 405 of 2020

Judgment of: YATES J

Date of judgment: 13 December 2021

Catchwords: COSTS – application for costs of interlocutory application in which the applicant had mixed success

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 15

Date of last submission: 26 November 2021

Counsel for the Applicant: Mr Christopher Withers SC with Mr Jerome Entwisle

Solicitor for the Applicant: Thomson Geer

Counsel for the Respondents: Mr Geoffrey Watson SC with Mr David J Helvadjian

Solicitor for the Respondents: Xenophon Davis

ORDERS NSD 405 of 2020

BETWEEN: THE REGISTERED CLUBS ASSOCIATION OF NEW SOUTH WALES (ABN 61 724 302 100) Applicant

AND: TROY GRAHAM STOLZ First Respondent

DIANNE LESLEY STOLZ Second Respondent

order made by: YATES J DATE OF ORDER: 13 DECEMBER 2021

THE COURT ORDERS THAT:

1. The first respondent pay 60% of the applicant's costs of and incidental to the interlocutory application filed by the applicant on 14 July 2021. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J: 1 On 17 November 2021, I published reasons for judgment in relation to an interlocutory application filed by the applicant on 14 July 2021: Registered Clubs Association of New South Wales v Stolz (No 2) [2021] FCA 1418 (the November judgment). 2 The interlocutory application dealt with three matters: the applicant's claim for injunctive relief in respect of a threatened contempt of court; orders to secure compliance by the respondents with previous orders providing a regime for the disclosure of documents; and the applicant's claim for an asset preservation order. 3 The applicant was successful in relation to obtaining injunctive relief but not in obtaining an asset preservation order. As I noted at the time, the orders sought to secure compliance by the respondents with previous orders providing a regime for the disclosure of documents was not contested beyond the form of the orders that should be made. 4 In the November judgment, I noted the applicant's mixed success and expressed the provisional view that the first respondent, Mr Stolz, should pay 60% of the applicant's costs of and incidental to the interlocutory application. I nevertheless gave the parties the opportunity to make submissions on costs (in the form of short written submissions) should they contend for a different costs order. 5 The applicant supports the provisional view on costs I expressed. The respondents contend for a different order, namely that each party should pay their own costs of and incidental to the interlocutory application. In support of that order, the respondents submit as follows. 6 First, the orders to secure compliance by the respondents with previous orders providing a regime for the disclosure of documents was addressed in correspondence prior to the hearing of the interlocutory application. The upshot was that, by the time of the hearing, the only material matter in dispute was whether Mr Stolz, or Mr Stolz's solicitors, should write to the two journalists concerned to seek their production of the documents which Mr Stolz had given them. In correspondence, Mr Stolz contended that his solicitors should write to the journalists—a position which, in the November judgment, I accepted as "satisfactory". The respondents submit that this procedure should have been accepted by the applicant prior to the hearing. The respondents submit that, had that been done, there would have been a significant reduction in time and costs in written and oral submissions. 7 Secondly, the respondents submit that the injunctive relief sought was expressed in terms of five separate injunctions which, they say, covered "an unbelievably broad field and differed greatly from the injunctive relief granted, which was far narrower". 8 Thirdly, the respondents point to the fact that the asset preservation order was not granted. They contend that, arguably, the application for this relief should not have been brought. 9 The respondents submit that, rather than achieving mixed success, the applicant achieved only "very limited success". 10 The respondents' submissions on the first matter are an oversimplification of the position. On 18 August 2021, the applicant's solicitors proposed orders that Mr Stolz write to the two journalists requesting that they provide a copy of Mr Stolz's communications with them. This was in the context of the applicant's solicitors having already written to the respondents' then solicitors, on 11 June 2021, seeking Mr Stolz's cooperation in respect of the production of these documents by the two journalists. That cooperation was not forthcoming: see [41] and [48] – [53] of the November judgment. It was only on 18 August 2021 that the respondents' solicitors proposed orders that they write to the two journalists, rather than Mr Stolz himself. Even then the order proposed was part of a suite of orders which, if agreed to, would "resolve the interlocutory application". Importantly, the suite of orders proposed made no provision for the injunctive relief sought by the applicant in relation to Mr Stolz's threatened contempt of court. Furthermore, the proposed suite of orders was expressed to be open for acceptance until 4.00 pm on 20 August 2021, the Friday before the hearing of the interlocutory application on 23 August 2021. 11 The applicant cannot be criticised for not accepting this proposal when, in effect, it required it to abandon a significant part—as it turns out, the most significant part in terms of the evidence adduced and the content of the written and oral submissions—of its claim for interlocutory relief. Further, it seems that the first time that the respondents advanced an unconditional proposal that their solicitors write to the two journalists was in the respondents' written outline of submissions dated 20 August 2021. 12 Given these circumstances, I accept the applicant's submission that it cannot be said that, on this issue, its conduct resulted in unnecessary costs being spent on written or oral submissions. 13 As to the respondents' submissions concerning the scope of the injunctive relief that was sought, it is true that I was not persuaded to grant relief in the precise terms sought by the applicant. But this was for various reasons including, importantly, the fact that certain specific conduct which the applicant wished to restrain, which constituted, arguably, discrete aspects of the contempt that was threatened, would be covered by the injunction I considered to be appropriate. Contrary to the respondents' submission, the injunction granted was not "far narrower" than the injunctions sought, although it was directed, more appropriately, to the threatened contempt. It is to be noted that Mr Stolz resisted any injunction being granted at all. It was, of course, appropriate to address the form of the injunction to be granted, but this represented, in terms of time and cost, a very small part of the hearing of the interlocutory application overall. 14 I am not persuaded that the order for costs that the respondents seek is appropriate. I am satisfied that the order I originally had in contemplation strikes the right balance as to how, and on whom, the burden of costs should fall. It recognises that the applicant was not successful in its claim for an asset preservation order but was successful on what was, undoubtedly, the major part of its claims for interlocutory relief, which occupied, by far, the most hearing time. 15 For these reasons, I am satisfied that the appropriate order in respect of costs is that Mr Stolz pay 60% of the applicant's costs of and incidental to the interlocutory application filed by the applicant on 14 July 2021. An order will be made accordingly. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.