New South Wales Supreme Court CITATION : HUNYH v. SWANSON & ANOR [1999] NSWSC 490 revised - 31/08/99 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11812 of 1998 HEARING DATE(S) : Tuesday 25 May 1999 JUDGMENT DATE : 25 May 1999 PARTIES : Van Tri HUNYH v. James Lawrence SWANSON & ANOR JUDGMENT OF : Greg James J at 1 LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 1200/97 LOWER COURT JUDICIAL OFFICER : J.L. Swanson Plaintiff: R. Horsley COUNSEL : First Defendant: Excused Second Defendant: P. Brereton, SC. Plaintiff: Russell McLelland Brown SOLICITORS : First Defendant: Excused Second Defendant: Blake Dawson Waldron CATCHWORDS : Costs - indemnity costs - asserted hopeless case - important question of legal principle raised. CASES CITED : Fountain Selected Meats (Sales) Pty. Limited v. International Procedure Merchants Pty. Limited (1988) 81 ALR 397 DECISION : Application for indemnity costs refused. HUNYH2 -4- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No. 11812 of 1998 GREG JAMES, J. MONDAY 24 MAY 1999 VAN TRI HUNYH v. JAMES LAWRENCE SWANSON & ANOR JUDGMENT HIS HONOUR: 1 In this matter I delivered judgment on 17 February 1999 in proceedings seeking a declaration which came on for hearing on 7 December 1998. It was sought that it be declared that the first-named defendant, a magistrate, at the hearing determine according to law an action brought in that court by the plaintiff against the second defendant. Orders were also sought quashing a decision of the magistrate that he did not have jurisdiction to determine the claim as it was brought. 2 Before me the proceedings involved the agitation of a number of questions, principally, firstly, whether in the Local Court under the Local Courts Act the magistrate had jurisdiction to entertain proceedings for contribution by reason of implication of law in respect of certain guarantees and further, whether it was inevitable that to those proceedings an answer based on an Anschun estoppel would inevitably be made out. 3 In respect of both of those matters, the plaintiff was successful. I concluded that the magistrate had wrongly declined jurisdiction and that the estoppel would not necessarily be made out, so that there was point in remitting the matter to the magistrate. 4 Before me it has been contended on behalf of the plaintiff that the arguments made by the respondent should at all times have been recognized as entirely untenable (notwithstanding that the magistrate not only entertained them but upheld them) such that it is appropriate that indemnity costs be awarded on the basis of the principle laid down in Fountain Selected Meats (Sales) Pty. Limited v. International Produce Merchants Pty. Limited (1988) 81 ALR 397. In essence, it is submitted that at all times the respondent had successfully persuaded the magistrate of a hopeless case and persisted in that hopeless case in this court. It is put that the litigation here was unnecessary and proceeded with wilful disregard of clearly established law. 5 As I have said in my judgment of 17 February, the points raised in the litigation as far as the jurisdiction of the Local Court was concerned, were most interesting and important questions for the jurisdiction of that court as to the ambit of matters which may be pleaded using a common money count and the entitlement to and provenance of the modern right to contribution (paragraph 24). 6 The issue before me involved the determination of the true meaning of what had been expressed in a number of judgments, including judgments in this court and in the High Court. The Anschun question involved the determination of the precise issues litigated between the parties in the Local Court amid a mass of litigation conducted by the parties in that and other courts. 7 I consider that this is not a matter in which it is appropriate to embark upon a dissection of the issues that were before this court and the magistrate such as to seek to examine any particular issue in isolation from the others. I do consider that what was raised and determined in the proceedings before me was not baseless or in wilful disregard of existing law or such that the respondent should have been disentitled from having a proper and authoritative legal determination of the legal matters raised. 8 In those circumstances, I am not of the view that this is an appropriate case in which to make an order for indemnity costs. 9 It nonetheless follows from the result and nothing has been put to the contrary by Mr. Brereton, SC. appearing for the respondent, that the respondent should pay the plaintiff's costs. It is however an appropriate matter, as far as I can ascertain, for the award of a certificate under s.6 of the Suitor's Fund Act and I make the order that the respondent should have such a certificate. (Further submissions from counsel) 10 The matter having come before me for the pronouncement of final orders and to dispose of questions of costs, I have decided against the plaintiff on the plaintiff's application for indemnity costs. That decision was substantially on the basis that I was not of the view that the respondent's arguments in the principal proceedings were baseless or in wilful disregard of authority. 11 At the conclusion of those proceedings and once the form of orders to be pronounced otherwise had been debated, Mr. Brereton for the respondent, sought that the plaintiff should be denied his costs of the proceedings today on the basis presumably that his application for indemnity costs was unreasonable in the light of the correspondence between the solicitors that has been tendered and was unlikely, at the least, to succeed, so unlikely indeed, that it too should be regarded as baseless. 12 In my view, that application should meet the same fate as the plaintiff's earlier application met. I do not regard the application for costs on an indemnity basis as unreasonable in the circumstances or baseless. The plaintiff should have his costs of the proceedings in this court, including the costs of today, particularly since the argument about costs has extended the proceedings, if at all, by only about half an hour. 13 I make orders in accordance with the short minutes as amended by me, initialled and placed with the papers. ********** Last Modified: 09/13/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.