New South Wales Supreme Court CITATION : Project 28 v Barr (No 2) [2007] NSWSC 801 HEARING DATE(S) : 17/07/07 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 17 July 2007 DECISION : Costs of proceedings before Associate Justice and on appeal be costs in the course. CATCHWORDS : PROCEDURE - Costs - Appeal from Associate Justice - Neither party totally successful Project 28 Ltd - Plaintiff PARTIES : Timothy James Barr - First Defendant Barr Project Management Pty Ltd - Second Defendant Richtech Pty Ltd - Third Defendant FILE NUMBER(S) : SC 6413/04 Mr R Dubler SC - Plaintiff COUNSEL : Mr J Lazarus - Fist and Second Defendants Mr J West QC/ Mr L Bowden - Third Defendant Verekers Lawyers - Plaintiff SOLICITORS : Corrs Chambers Westgarth Lawyers - First and Second Defendants Creswicks Lawyers - David Beattie pty Ltd Solicitor (Agents) - Third Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J TUESDAY 17 JULY 2007 6413/04 PROJECT 28 PTY LTD V TIMOTHY JAMES BARR & ORS (NO 2) EX TEMPORE JUDGMENT 1 I gave judgment in this matter on 4 July 2007. There is before the court today, in accordance with the direction I gave, short minutes of order to give effect to my reasons for judgment. 2 There is agreement with respect to most of the orders sought by the plaintiff, Project 28 Pty Ltd. There is disagreement over the question of costs. Project 28 argues that the third defendant, Richtech Pty Ltd, should be ordered to pay its costs in respect of the notice of motion before the Associate Justice and its costs of the appeal to me. Richtech argues that the costs should be costs in the cause. 3 McLaughlin AsJ made an order that before any lay witness was called to give evidence in the case of Richtech, a statement by the solicitor for the Richtech be served upon Project 28 and upon the first defendant, Timothy James Barr, and second defendant, Barr Project Management Pty Ltd, such statement to set forth the nature of the evidence which the solicitor understood would be given by that lay witness. 4 In my reasons for judgment I indicated that the appropriate order was for the delivery by Richtech of witness statements by a specified date, except in the case of any witness who claimed privilege against self-incrimination. In that case, a witness statement should only be provided to Project 28 at the close of its case against Richtech if it proposed that such witness would give evidence on its behalf. 5 I accept the submission of Mr West QC for Richtech that neither party was totally successful in the appeal to me. The variation of the order was circumscribed and governed by my concern that, if the order of the Associate Justice stood, it would subvert the decision of the High Court in Environment Protection Authority v Caltex Refinery Co Pty Ltd (1992-1993) 178 CLR 477. 6 Mr Dubler SC, who appears for Project 28, argued that, if the order that I proposed had been put forward before the McLaughlin AsJ it would have been accepted. Nevertheless, the matter was argued before me and the proposition was maintained on the part of Project 28 that there was no entitlement in a corporate defendant to claim privilege against self-incrimination. 7 In my view, neither party was totally successful and the appropriate order is that the costs, both of the notice of motion of 15 August 2006 and the appeal be costs in the cause. ********** 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.