Carter v NSW Netball Association (No 2) [2004] NSWSC 778

New South Wales Supreme Court

CITATION : Carter v NSW Netball Association (No 2) [2004] NSWSC 778 HEARING DATE(S) : 24 August, 2004 JUDGMENT DATE : 25 August 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Defendant to pay Plaintiff's cost on indemnity basis.

CATCHWORDS : INDEMNITY COSTS - Whether the Defendant, properly advised, should have known that Defence would fail. CASES CITED : - Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 - Rosniak v GIO (1997) 41 NSWLR 608 PARTIES : Sandra Viola Carter - Plaintiff The New South Wales Netball Association - Defendant FILE NUMBER(S) : SC 1679/04 COUNSEL : J.E. Armfield - Plaintiff R.E. Montgomery, J. Watson - Defendant SOLICITORS : Coode & Corry - Plaintiff Sparke Helmore - Defendant

JUDGMENT – Ex tempore

1 In these proceedings I delivered judgment on 17 August 2004 and stood the proceedings over to yesterday for submissions as to the form of the orders to be made and as to costs. 2 When the matter was called on yesterday, there was some short debate as to the form of the undertakings to be given by the Defendant. However, I think that Mr Montgomery, who appeared with Mr Watson for the Defendant, very soon conceded that the form of the words in paragraph 4 of the Plaintiff's Draft Short Minutes is appropriate with the addition of the inverted commas where I suggested. I will accept an undertaking in terms of paragraph 4 of the Plaintiff's Short Minutes of Order. 3 The substantial debate yesterday was as to whether the Defendant should pay the Plaintiff's costs of the proceedings on the indemnity basis. Counsel for both parties prepared written submissions, which I have found most helpful. 4 Mr Armfield, who appeared for the Plaintiff, says that this is a case in which the Defendant, properly advised, should have known that its persistence in the litigation was without any prospect of success. He relies upon the considerations discussed by Mason P in Rosniak v GIO (1997) 41 NSWLR 608 at 615 to 616. 5 Mr Montgomery submits that an indemnity costs order will not be made in the present case because the Defendant cannot be shown to have been guilty of relevant delinquencies or unreasonable conduct of a serious kind. He refers to cases such Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. 6 In my opinion, I should exercise the discretion as to costs according to the following general observations made by Mason P in Rosniak at 616: "Later cases have emphasised that the discretion to depart from the usual 'party and party' basis for costs is not confined to the situation of what Gummow J described as the 'ethically or morally delinquent party' ( Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 415): see Baltic Shipping Co v Dillon, "Mikhail Lermontov" (1991) 22 NSWLR 1 at 34; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234. Nevertheless the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation." 7 In the present case I have regard to the following considerations. 8 On 22 January 2004 the Plaintiff's solicitor wrote to the Defendant pointing out the flaws in the disciplinary proceedings which the Defendant had conducted. Many of the flaws asserted in that letter have been found to have occurred. The most glaring flaw pointed out in the letter was that Miss Fraser had declined to interview any of the witnesses proffered by the Plaintiff. In effect, she had conducted a one-sided investigation. I think that whatever else might have been thought of the other points raised in that solicitor's letter, the point made that the decision had been founded upon a one sided investigation must have been recognised by a competent legal adviser as a fatal denial of natural justice. 9 The Defendant's response, however, was to deny any breach of the requirements of natural justice. 10 On 15 June 2004, two days before the proceedings were to commence, the Plaintiff's solicitor wrote to the Defendant enclosing the Statement of Claim which they proposed to file and drawing attention to the following matters: "1. The complaint received by you on 6 August, 2003 from the No Excuse for Abuse Committee attached a petition purportedly signed by several persons. If you have regard to the second last page (which is the commencement of the petition), no reference is made at the top of the page to any complainant about our client. We have made inquiries of several persons who signed the petition and they have informed us that they were not shown the letter attached to the petition or informed in any way that it related to a complaint about our client. We have two Affidavits from persons who signed the petition to this effect.