Graham v Baptist Union of New South Wales (No 2) [2006] NSWSC 875

New South Wales Supreme Court

CITATION : Graham v Baptist Union of New South Wales (No 2) [2006] NSWSC 875

HEARING DATE(S) : 24/08/06 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 08/24/2006

DECISION : Plaintiff to pay the defendant's costs of the proceedings after 4 May 2006. Otherwise no order as to costs.

CATCHWORDS : PROCEDURE [555]- Costs- Proceedings for an injunction to restrain the defendant from accepting the recommendation that the plaintiff be removed from the list of accredited ministers- Found that there had been no denial of natural justice but that the appeal was still on foot- Defendant challenged the prima facie view that each party should bear their own costs- Conduct of plaintiff has substantially brought about the litigation- Plaintiff failed on his preliminary submission- Defendant made an offer of compromise that was more favourable to the plaintiff than the court's decision- Plaintiff to pay defendant's costs of the proceedings after the date of the offer.

PARTIES : Phillip Graham (P) Baptist Union of New South Wales (D)

FILE NUMBER(S) : SC 2475/06

COUNSEL : S A Beckett (P) P Singleton (D)

SOLICITORS : Parke Maher (P) McPhee Kelshaw (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 24 August 2006

2475/06 – GRAHAM v BAPTIST UNION OF NEW SOUTH WALES (NO 2) JUDGMENT 1 HIS HONOUR: The plaintiff commenced these proceedings on 24 April 2006 seeking injunctive relief against what appeared to be decisions made of various organs of the Baptist Church which would prejudice his occupation as an accredited minister of that church. There were interlocutory proceedings on 28 April 2006 and Barrett J considered that the balance of convenience favoured the plaintiff and made an injunction with costs of the interlocutory application to be costs in the cause and stood the matter over into the expedition list to 12 May. 2 The matter was heard by me on 1 August 2006 and I gave judgment on 16 August 2006. The plaintiff's principal attack was that he had been denied natural justice by a subcommittee of the disciplinary body of the Baptist Church. He took a number of points. One of these which really had surfaced for the first time at the interlocutory hearing before Barrett J, was that a person accused of a matter which might lead to his being struck off the roll of accredited clergy was entitled to be told of the exact time and place at which the committee would hear and consider the matter, and that, notwithstanding that he had previously been invited to nominate a time and place that would be suitable to him. The committee even agreed to meet in the Hunter Region where the plaintiff practiced. It would appear that he had not responded to that request. The matters of natural justice were fully argued before me and I found for the defendant for the reasons I have already given. 3 The plaintiff lodged an internal appeal against the committee's decision and there was some delay and counsel assisting the appeal committee informed the plaintiff's solicitor that if he did not respond by a certain time the appeal would be deemed to be abandoned. I held that that was not the correct procedure and the plaintiff was entitled to a declaration that the appeal was still on foot. The plaintiff, however, had wanted more than that. He had wanted an injunction and indeed he had really wanted a direction from the court as to how the future proceedings would be conducted. As to that matter, I made some comments but certainly made no determination. 4 In the judgment I suggested that it would be appropriate that each party bear their own costs and gave leave to either party to list the matter should they wish to challenge that prima facie view. The defendant took advantage of that liberty and the matter has been argued this morning. 5 Whilst costs are in the discretion of the court, as a general rule the winner gets costs and the loser pays costs. However, there are various exceptions to that general rule. One is where the conduct of the plaintiff has brought about or substantially brought about the litigation. And I was of the view that that really did apply to this case because it would appear - and I can't make a stronger statement - that the plaintiff was advised that he was entitled to take every procedural point rather than answer an allegation put to him by his professional association. That I held was not a course which a person is entitled to take. 6 The further matter was that the plaintiff had failed on his principal submission. 7 What I didn't know then, and I think I should have been told by both parties, was that on 13 July the Executive Committee of the Baptist Union resolved that "The recommendation to the Committee for the Ministry in relation to Mr Graham ... will not be brought to the Assembly/Convention until the outcome of his appeal from the decision of the Discipline Sub-Committee of the Committee for Ministry has been determined." It was clear as from 13 July that the Baptist Church acknowledged that the appeal was still on foot and that was the only matter on which the plaintiff succeeded before me. Had I known about that, I would not have made the declaration because there was no dispute before the court that needed to be resolved and a lot of money would have been saved. 8 The solicitors, however, indulged in further correspondence, which is MI04, and it was clear that the plaintiff wanted more; he wanted an injunction, he wanted some costs and he also wanted a clear direction as to what was going to happen in the future. And the parties just could not agree on that. 9 Indeed, on 4 May the defendant had written a letter suggesting that the matter could be compromised by the decision being rescinded, the proceedings being dismissed on the basis that each party pay their own costs, and that the plaintiff forward the evidence upon which he wished to rely at a re-hearing before the committee at a certain time, and this offer was not accepted. A counter offer was made that he get 75 per cent of his costs. Having looked at that material it seems to me that my basic decision made as to costs is correct, but that the position changed as from 4 May, matters of which I was not made aware. 10 I think that in view of that correspondence I should order that the plaintiff pay the defendant's costs of the proceedings after 4 May 2006, otherwise there should be no order as to costs. To make it quite clear, the injunction granted by Barrett J on 28 April 2006 has now terminated.