Supreme Court New South Wales Medium Neutral Citation: Nichols v Singleton Council (No 3) [2012] NSWSC 367 Hearing dates: In chambers Decision date: 19 April 2012 Jurisdiction: Common Law - Administrative Law Before: Schmidt J Decision: 1. The undated report of the second defendant, Bernard Smith as conduct reviewer provided to the first defendant on 8 November 2010 is quashed. 2. The first defendant, Singleton Council, is restrained from giving any consideration to that report. 3. The plaintiff is to pay: (a) the defendants' costs of the motions filed on 23 May 2011 seeking declarations and orders for punishment for contempt and that the defendants' points of defence be struck out, as agreed or assessed (b) the third defendant's costs of the motion filed on 17 August 2011 seeking a suppression order, as agreed or assessed. (c) the fourth defendant's costs, of no more than 15% of the costs incurred by the defendants in their joint representation in the proceedings, as agreed or assessed. 4. The first, second and third defendants are otherwise to pay the plaintiff's costs of the proceedings, as agreed or assessed. The Court notes: 5. Pursuant to the order made by the Registrar on 5 April 2011 the defendants are to pay the plaintiff's costs of his application for verified discovery. Catchwords: PROCEDURE - judgment and orders - final orders - whether Council should be restrained from considering the report, given the order that the report be quashed - restraining order made PROCEDURE - costs - general rule costs follow the event - Sanderson type order sought - no departure from usual rule - defendant sought costs orders in relation to contempt motions and suppression motion - no departure from usual costs order in relation to contempt motions - plaintiff to bear costs of suppression order Legislation Cited: Civil Procedure Act 2005 Local Government Act 1993 Cases Cited: James v Surf Road Nominees Pty Ltd [No 2] [2005] NSWCA 296 Lackersteen v Jones (No 2) (1988) 93 FLR 442 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306 Nichols v Singleton Council [2011] NSWSC 946 Nichols v Singleton Council (No 2) [2011] NSWSC 1517 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 Category: Consequential orders Parties: Paul Nichols (Plaintiff) Singleton Council (First Defendant) Bernard Smith (Second Defendant) Scott Greensill (Third Defendant) Gary Thomson (Fourth Defendant) Representation: Counsel: Mr R Lovas (Plaintiff) Mr J Griffiths SC with Ms M Allars (Defendants) Solicitors: Alex Irving Solicitor (Plaintiff) Sparke Helmore Lawyers (Defendants) File Number(s): 2010/376603 Publication restriction: None Judgment 1Judgment was given in this matter in Nichols v Singleton Council (No 2) [2011] NSWSC 1517. There I indicated that I would hear the parties on the final orders to be made and in relation to costs. The orders proposed by the plaintiff were: "1. Quashes the findings and recommendations of the second defendant contained in an unsigned and undated report (apparently made in late October or early November 2010) being Exhibit 3, pages 1211 to 1231 in these proceedings. 2. Orders the first defendant be restrained from giving any consideration to the said report. 3. Orders the defendants to pay the plaintiff's costs of the proceedings, such costs which were incurred: a. up to 22 February 2012 to be assessed on the ordinary (party/party) basis; and b. after 23 February 2012 to be assessed on an indemnity basis. Alternatively, as originally sought, the costs order could be simply: Orders the defendants to pay the plaintiff's costs of the proceedings." 2Those proposed by the defendants were: "1. The undated report made by Bernard Smith as conduct reviewer, provided to the First Defendant on 8 November 2010 (In Exhibit 3 pp 1211 to 1231), is quashed. 2. The Plaintiff is to pay: (a) the First, Second, Third and Fourth defendants' costs of the Plaintiff's four notices of motion filed on 23 May 2011 seeking declarations and orders for punishment of contempt by the Defendants and orders that the Defendants' points of defence be struck out. (b) the First and Third defendants' costs of their motion filed on 17 August 2011 seeking a suppression order under the Court Suppression and Non-publication Orders Act 2010 (NSW); and (c) the costs of the First, Third and Fourth defendants of the proceedings as pleaded in the amended summons. 3. The Second Defendant is to pay 25 per cent of the Plaintiff's costs of the proceedings as pleaded in the amended summons. The Court notes that: 4. Pursuant to the order made by the Registrar on 5 April 2011 the Defendants are to pay the Plaintiff's costs of his application for verified discovery." The orders 3There was no issue that an order quashing Mr Smith's report should be made, but still a disagreement as to whether an order restraining the Council from considering his report should be made, given the order that the report be quashed. 4An order restraining the Council from considering the report was amongst the orders sought in the summons and was pressed at the hearing. It was resisted by the Council in its pleadings and submissions. The plaintiff's case was that the Council had breached the Hardiman principle in its approach to the litigation (see The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13). In the result it should not only be restrained from considering Mr Smith's report, it should be restrained from considering the complaint received against the plaintiff at all. That order was not pressed, as was submitted for the Council, only consequentially upon the complaint that Mr Smith had denied the plaintiff procedural fairness in failing to give responses to his requests for particulars. 5The Council accepted that it had taken a more active part in the proceedings than a submitting appearance would have permitted. Its case was that even so, the orders sought by the plaintiff would not be made, given what it had done in the litigation, in circumstances where it had as yet made no decisions in relation to the complaint, which was yet to come before it. The Council also accepted that if and when it came to consider the complaint made against the plaintiff, one of its Councillors, it was bound to afford him his common law rights to procedural fairness. 6In the earlier judgment, I concluded that while orders restraining the Council from dealing further with the complaint should not be made, orders restraining it from taking account of Mr Smith's report should be made (see at [178]). 7I concluded that this was necessary in the unusual circumstances which had arisen. Not only had the report in issue already been placed before the Council, in accordance with the Council's Code of Conduct; the report had been made public when placed on the Council's agenda; and the Council had then taken an active role in the proceedings, resisting the plaintiff's case, up to the time of the hearing, contrary to the Hardiman principle, in order to defend the report and the use which could be made of it, even though it had not yet considered the report. I observed at [197] - [199]: "197 The circumstances in this case were admittedly unusual. The Act and the Code provide a scheme whereby the Council is given an important role in relation to complaints made about individual councillors. In this case, the complaint made about Mr Nichols was dealt with under the Code by appointment of a reviewer. That process went seriously awry. Mr Smith's report has, however, not been considered by the Council. It has not as yet taken any steps at all to consider the complaint or the report. Initially, no orders were sought to preclude it considering the complaint. There were other parties appearing in the proceedings, including its general manager. Given the nature of the complaints advanced against him, however, that the Council had a separate concern as to its powers, duties and obligations under the Act and the Code must be accepted. 198 It did not file a submitting appearance and, it seems to me, initially, involved itself inappropriately in a question of discovery. That this was the result of any decision made by the Council itself, is not apparent. Given the nature of this statutory scheme, the day-to-day conduct of litigation appears to fall within the general manager's responsibility. The Registrar made orders that verified discovery be given, after a contested hearing (see Nichols v Singleton Council v Others, unreported, 5 April 2011). It also claimed, but later abandoned legal professional privilege in relation to legal advice which its solicitors had given it, in relation to the complaint. It is difficult to see that this accorded with the Hardiman principle. 199 All of this was, however, eventually resolved, albeit it generated a motion alleging that the Council was in contempt, which was finally not pressed. At the hearing it did not seek to defend any steps thus far taken in respect of the conduct of the investigation into the complaint, nor did it seek to defend any decision made by the other defendants about the complaint. It was, however, concerned to resist orders pressed on a Hardiman basis, which would preclude it from dealing with the complaint, given the obligations imposed upon it by the Code and the Act. It seems to me that given this statutory scheme, that approach is not one which should lead to the orders pressed." 8Section 440 of the Local Government Act 1993, obliges the Council to deal with the complaint made against the plaintiff, in accordance with its Code of Conduct, but the Code does not circumscribe how the Council may exercise its powers. I observed in the judgment at [78] - [79]: "78 The Code does not purport to bind the Council to accept the views of a reviewer such as Mr Smith, especially if the Council is not satisfied that they provided a proper basis upon which it could reach a view about whether or not the complaint that the Code had been breached could be determined. It was accepted for Mr Nichols that the Council could call for all the material on which his report rested. In my view, if it was thereupon dissatisfied with the adequacy of the enquiries made, or if it disagreed with the conclusions he had reached on that material, in accordance with its statutory powers, the Council would be entitled to decide whether any recommendations made to it by the reviewer should be accepted or rejected; or whether further enquiry should be made. 79 All such steps fall within the Council's broad discretion as to the direction and control of the affairs of the Council. The Code is subservient to that statutory obligation and must be implemented consistently with the Council's proper exercise of its statutory powers." . 9In the circumstances, I concluded that a restraining order was necessary to ensure that the Council does not further consider the report, which is to be quashed as the result of the orders made in these proceedings. I said (at [204] - [205]): "204 It seems to me that in the circumstances, the preferable course would have been for the Council, from the outset, to have confined itself as it finally did at the hearing. Even so, while the parties must be heard on the question of costs, the circumstances are in my assessment not such that orders restraining the Council from dealing with the complaint at all, may be made, given the Council's statutory role in relation to the complaint, how the Council is constituted, that it is not in issue that individual councillors who should recuse themselves, will do so and that the Council has as yet not considered the complaint at all. It did ultimately not defend the case advanced against the other defendants. The case finally put in relation to the Hardiman case, was appropriate for it to advance. The case in relation to the disclosure of the complainant's name is, in my view, not an appropriate basis for the orders now ought. 205 The alternative order pressed, that Council be restrained from giving any consideration to Mr Smith's report, should be made, given the conclusions I have reached in relation to that report." 10Despite these conclusions the Council's case was that an order restraining it was not necessary, once the report was quashed, because it is then no longer in existence as a matter of law and would not be a report which Council was obliged to consider under the Code. The plaintiff's case that Mr Smith had denied Mr Nichols procedural fairness in failing to give written responses to particulars had failed, as had the complaints advanced against the Council under the Hardiman principle, it not having been concluded that apprehended bias was established. In the result no restraining order should be made. There was no basis for any concern that in future the Council might take the quashed report into account, when considering the complaint, so as to provide any basis for injunctive relief. 11The future course of the Council as a decision maker under the Code was not known. Any apprehension on the plaintiff's part was as to future conduct in taking an irrelevant consideration into account. There was no evidence that could provide a basis for any injunctive relief. The order sought confined consideration of the report by the present and future Councils and councillors, who would otherwise not be acting unlawfully in considering the quashed report. Until there was a valid report before the Council, there was no suggestion that it would act inconsistently with the Code, in dealing with the complaint. There was no apprehended breach of the Code or any statutory duty and so no utility in an order restraining the Council from considering the quashed report. 12In my view those submissions cannot result in a departure from the conclusion already reached that the plaintiff has established a basis for the making of an order restraining the Council from considering the report. The proceedings were pursued because of the Council's defence of the report and its insistence that the report which had been placed before it, would be considered. 13The Council eventually gave an undertaking in the proceedings that it would refrain from determining or considering the complaint made against Mr Nichols, or from taking any steps under the Code, or otherwise in relation to the complaint, pending determination of the proceedings. Still it defended the report and resisted various steps pursued by the plaintiff in the proceedings, including in relation to discovery. 14It was not until the hearing, that it accepted that to that point, its conduct of the proceedings had departed from adherence to what the Hardiman principle required and then pursued a different approach. 15That history underpinned the conclusion that a restraining order should be made against the Council, as the plaintiff pressed. The Council ought from the outset to have confined itself as it did at the final hearing, in accordance with the Hardiman principle, instead of defending the actions it, its employees and Mr Smith had taken in relation to the complaint received against the plaintiff and asserting the right to consider the complaint in light of the report. Its further resistance of a restraining order, at this stage of these proceedings, does not seem to me to be appropriate in the circumstances. 16The position now is that the Council must determine how it is to proceed in relation to the complaint made against the plaintiff. It was accepted in submissions that the Council is not entitled to act on the basis of any consideration being given to Mr Smith's report, but still the order I had concluded should be made against it was resisted, in part because of the possibility that in future the Council, or individual councillors might act in breach of such an order. 17The councillors elected from time to time comprise the Council's governing body. Councils conduct their business in public meetings. The report in issue has already been placed before the Council and has been made public. Having in mind the nature of the statutory scheme which governs the operation of the Council's affairs and the Code of Conduct under which complaints against Councillors must be dealt with; the way in which the Council responded to the proceedings which the plaintiff brought; and its initial departure from what the Hardiman principle required of it, in relation to the dispute over this report, I remain of the view that a restraining order should be made. In my view, in the circumstances, it ought to be made clear by the Court's orders that any future decisions made by the Council in relation to the complaint made against Mr Nichols, must be made without reference to the report which generated these proceedings. 18The fact that the day to day business of the Council is under the control of its general manager and that the Council may in future be constituted by different councillors from time to time, is a factor which supports, rather than detracts from the conclusion that an order binding the Council in relation to the future use which it may make of the report, should be made, notwithstanding that Mr Greensill is no longer the Council's general manager. 19Given the conclusions reached in these proceedings, the Council ought to take the steps necessary to ensure that its further consideration of the complaint against Mr Nichols is not conducted by reference to the report, the subject of these proceedings. That breach of the order I propose to make would expose the Council to further litigation, is not a reason for declining to make the order I have determined that it is necessary to make, in the unusual situation which has arisen in this case. Costs 20The usual order is that costs follow the event. The plaintiff sought relief against the Council, Mr Smith, Mr Greensill and Mr Thomson. He succeeded against the Council, Mr Smith and Mr Greensill, but not against Mr Thomson. The only reason that it was not necessary to make orders against Mr Greensill, was because he left the Council's employ. Had that not occurred and been announced during the course of the hearing, orders would have been made against him, given the case which the plaintiff established against him. 21The usual order would thus be an order in favour of the plaintiff in relation to the claims brought against the Council, Mr Smith, Mr Greensill and an order that the plaintiff meet Mr Thomson's costs of the proceedings. 22Also to be considered is that the Registrar made certain costs orders earlier in the proceedings; the costs of motions seeking to have the defendants dealt with for contempt which were dismissed, when the motions were not pressed at the hearing; and the costs of motions by which the defendant successfully sought orders suppressing the name of the complainant. 23The defendants accepted that they had to pay the costs ordered against them by the Registrar, in relation to the plaintiff's costs for his successful application for verified discovery. They sought an order in their favour in relation to the contempt motions and in relation to the suppression motion. Mr Thomson 24In Mr Thomson's case it was submitted for the plaintiff that although the claim against him had failed, given the approach he had adopted to the proceedings and the difficulty of disentangling the issues which concerned him, from those advanced against the other defendants, which he joined in defending by his pleadings and representation, no order should be made in his favour. In the alternative a 'Sanderson' type order should be made, requiring the Council to indemnify Mr Thomson, including in relation to the plaintiff's costs. 25Reliance was placed on the observations of Asche J in Lackersteen v Jones (No 2) (1988) 93 FLR 442 at 449: "From those cases therefore the following principles seem to be established before a judge can make a "Bullock" or "Sanderson" order. 1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant. 2. The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other. 3. While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion. 4. Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful." 26Reliance was also placed on the conclusions of Ward J in McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306 at [8] - [43]. There her Honour considered the Court's discretion as to costs under s 98(1) of the Civil Procedure Act 2005, in circumstances where there were multiple issues in the proceedings and the plaintiff had not succeeded on all of them. As her Honour there discussed by reference to binding authority, it is well settled that where there is a mixed outcome in relation to the various issues raised in the proceedings, the question of apportionment of costs is a matter for the trial judge. The exercise of the discretion depends on matters of impression and evaluation, not mathematical precision. 27The four defendants were represented by the same lawyers and adopted the same stance in the proceedings, including in their pleadings, up until the hearing. Only then did the Council adopt an approach consistent with the Hardiman principle. In the circumstances, it was submitted that the Council should be made vicariously liable for the costs Mr Smith, Mr Greensill and Mr Thomson had incurred in the proceedings. It bore responsibility for the costs incurred in the proceedings, by the stance which its two agents, Mr Greensill and Mr McKelvey, its solicitor, took. 28In my view, these circumstances do not provide a basis for a departure from the usual rule in respect of the claims advanced against Mr Thomson. They occupied only quite a small part of the proceedings. This is not a question of apportioning costs between the same parties, as to differing issues. The plaintiff elected to bring proceedings against Mr Thomson. The relief sought was a declaration that Mr Greensill's delegation of his functions under the Code to Mr Thomson was void; orders that it be quashed; a declaration that his decision to refer the complaint to a reviewer under the Code was void and orders that it be quashed. The plaintiff failed to make out the case brought. That other complaints as to Mr Greensill acting inconsistently with his delegation to Mr Thomson were established, does not alter the fact that the plaintiff did not succeed against Mr Thomson. 29The overriding consideration in a 'Sanderson' type order is whether the circumstances are such that the successful party's costs should be paid by a particular unsuccessful party. It is the plaintiff who was the unsuccessful party, so far as Mr Thomson was concerned. It was he who decided to bring the claims which he did not make out against Mr Thomson. It has not been shown that Mr Thomson's joinder as a defendant was as the result of anything which he or the Council did. 30There is, in my view, nothing in the circumstances which would warrant a departure from the usual order in Mr Thomson's favour. An order for costs in favour of the successful party is compensatory in nature, reflecting in Mr Thomson's case his successful defence of the plaintiff's claims against him. It is not a punitive order (see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534). To deprive Mr Thomson of a costs order would not be consistent with what the dictates of justice require in these circumstances. Nor has a case been made out justifying an order that the Council bear Mr Thomson's costs. 31The plaintiff's action against the four defendants arose out of the steps taken to deal with the complaint which was made against him. Mr Thomson's defence of the validity of the delegation to him of Mr Greensill's functions under the Code, and his decision to refer the complaint succeeded. The plaintiff's complaints that Mr Greensill acted inconsistently with that delegation were also made out, but his success on that aspect of the proceedings will be dealt with by a costs order against Mr Greensill. Having brought the proceedings against Mr Thomson and having failed to make out the case brought, in my assessment justice does not permit any departure from the usual order. 32Given the joint representation in the proceedings and that all of the defendants advanced the same cases by their pleadings, sensibly some assessment must be made as to what proportion of the case concerned the claims advanced against Mr Thomson. In my view, that must be assessed as having involved only some 15% of the time taken in relation to the matters raised in the proceedings. In the result the plaintiff ought not to have to bear more than a 15% share of the costs incurred by the defendants in their joint representation, in respect of the case brought against Mr Thomson. The other defendants 33For the plaintiff it was also urged that in determining costs, account would be taken of the Council's policy as to payment of councillors' legal expenses not covered by insurance where the proceedings arise out of the performance of a councillor's functions under the Act, with the result that the plaintiff will be entitled to a non-discretionary indemnity, if the eventual outcome of the complaint made against him is substantially favourable to him. This was submitted to be a weighty consideration in determining the costs order to be made in these proceedings. It was submitted that from a practical point of view, these proceedings ought to be considered to be an interlocutory application, which was substantially favourable to him. 34The claimed operation of the policy was disputed by the defendants, who submitted that it did not apply to a Councillor who had initiated proceedings such as this. It was also submitted to be irrelevant to the question of the proper exercise of the costs discretion. 35For the plaintiff it was also submitted that the role taken by the Council in the proceedings, inconsistent with strict adherence to the Hardiman principle prior to the hearing, was relevant to the exercise of the discretion. The Council was a necessary defendant in the proceedings, who should have made a submitting appearance. The plaintiff succeeded against it, Mr Smith and Mr Greensill. Since judgment was given in December 2011, he had done all that he could to negotiate and settle the question of costs. 36He properly pursued efforts to reach an agreement on costs, including attending a conference to discuss the costs issue, where, it was complained, the Council raised its decision to revisit the remedies which the Court had indicated it would grant the plaintiff in the earlier judgment. After the failed settlement conference, he named a fixed sum of $110,000, which was not accepted. In the result, it was argued that if the plaintiff was granted a costs order similar to or better than that offered on 23 February, then costs incurred subsequently should be awarded on an indemnity basis. 37In my view the Council's policy as to payment of councillors' legal expenses, the operation of which is disputed, is not a relevant consideration to the exercise of the discretion as to costs. If the effect of the policy is that the Council must pay the plaintiff's costs of these proceedings, he will not need to rely on the Court's order to recover his costs. If that is not the way in which the policy operates, its existence can be of no assistance to the plaintiff. 38The usual order is that costs should follow the event. An indemnity costs order may be made in circumstances where there is relevant misconduct in connection with the conduct of the proceedings, (see Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [44].) Where a party makes an offer of settlement, which is later bettered in the proceedings, an indemnity costs order may be made on a Calderbank basis. That the parties pursued negotiations in relation to costs which failed, does not establish misconduct. Nor does the material relied on show that the plaintiff has achieved a better outcome, so far as costs are concerned, than the offer which he made in February. 39In my view there is no reason why the usual costs order should not be made in favor of the plaintiff against the defendants other than Mr Thomson. The defendants submitted that the plaintiff ought only to recover 25% of his costs against Mr Smith, given his partial success on the case advanced against him; that because no relief was granted in relation to Mr Greensill the plaintiff should pay his costs; and that given the failure of the case advanced against the Council, as to apprehended bias, that the plaintiff ought to pay its costs. 40I cannot accept that this would be a just approach to the resolution of the question of costs, as between these parties. While the plaintiff did not make out all of the complaints which he advanced, it does not seem to me that he unreasonably pursued any of the issues on which he failed. Proper account must also be taken of the fact that he established a case against all three of these defendants. As discussed in James v Surf Road Nominees Pty Ltd [No 2] [2005] NSWCA 296 at [34], unlike the position in relation to the case advanced against Mr Thomson, the cases advanced against Mr Smith and Mr Greensill did not involve clearly discrete issues, in respect of which the time taken on each issue can be readily identified or realistically estimated. 41In the result, it would in my view be unreasonable to seek to separate out the time taken in relation to the issues on which the plaintiff did not succeed. The plaintiff obtained the relief which he sought in relation to Mr Smith's report, an order that the report be quashed, having established that he had been denied the fundamental duty owed to him, in the investigation of the complaint made against him, namely procedural fairness. Had Mr Greensill not resigned from his position as general manager, orders would have been made against him, because the plaintiff also established the case brought against him. That orders were finally not necessary to be made, was only because he had left the Council's employ, an announcement only made during the course of the hearing. That is not a basis for making a costs order in Mr Greensill's favour, he having failed to defend the case brought against him. The plaintiff also succeeded in establishing that prior to the hearing the Council had acted inconstantly with the Hardiman principle, which obliged it not to act as a protagonist in the proceedings. In the result he also succeeded in having an order made against it. 42In all of those circumstances, it seems to me that justice does not permit a departure from the usual order in relation to these defendants, otherwise than in relation to the following matters. The contempt motions 43The plaintiff brought, but finally did not pursue motions for contempt brought against the four defendants, in respect of their failure to give verified discovery, as had been ordered by the Registrar. The alleged contempt was concerned with a claimed failure to properly execute affidavits verifying discovery. Even though, the motions were finally not pressed, detailed submissions were advanced for the plaintiff as to the circumstances in which the contested orders had been made by the Registrar; what acts could constitute civil contempt; the acts which were alleged to have constituted the defendants' contempt; the forensic effect of the defendants' failures; and why the motions alleging contempt were filed and pursued up until the hearing. 44It was argued for the plaintiff that the contempt motions were not precipitous, even though no correspondence was sent to the defendants, warning them of the plaintiff's intention to pursue them for contempt, if the failures on which the contempt motions rested were not addressed. They all concerned failures to give the verified discovery ordered by the Registrar. The acts of contempt were submitted to have been completed before 12 May 2011, before the defendants' purported but ineffectual compliance with the orders, and before their belated compliance, after the motions were served. It was submitted to be relevant that it was only when 'hit with the big stick' of service of the motions that the Registrar's orders were fully complied with. It was argued that it could not be concluded that the same result would have followed if the plaintiff had earlier corresponded with the defendants and that it had been important for him not to take any step in the proceedings, which might have resulted in him waiving his rights in respect of the defendants' contempt. In the result, a costs order would not be made against the plaintiff. 45These submissions may not be accepted. Alerting the defendants to the plaintiff's intention to proceed in respect of the alleged contempt, could not have resulted in the waiver of any of the plaintiff's rights in relation to the defendants' alleged contempt, if it were not rectified. Service of the motions resulted in the alleged contempt being addressed and the plaintiff not pursuing the motions which were later dismissed by consent. Those circumstances do not provide any just basis for a departure from the usual costs order, in relation to these motions. The suppression order 46The usual order would be that the plaintiff must bear the costs of the suppression order, which he unsuccessfully resisted after the disclosure of complainant's name to him, as the result of representative error (see Nichols v Singleton Council [2011] NSWSC 946). 47Given the conclusions which I reached as to the Council's unnecessary involvement in this application, however, at a time when it ought to have confined its role in the proceedings as the Hardiman principle contemplated, it ought not to recover its costs of this motion (see Nichols v Singleton Council (No 2) at [202]). Orders 48I make the following orders: 1. The undated report of the second defendant, Bernard Smith as conduct reviewer provided to the first defendant on 8 November 2010 is quashed. 2. The first defendant, Singleton Council, is restrained from giving any consideration to that report. 3. The plaintiff is to pay: (a) the defendants' costs of the motions filed on 23 May 2011 seeking declarations and orders for punishment for contempt and that the defendants' points of defence be struck out, as agreed or assessed (b) the third defendant's costs of the motion filed on 17 August 2011 seeking a suppression order, as agreed or assessed. (c) the fourth defendant's costs, of no more than 15% of the costs incurred by the defendants in their joint representation in the proceedings, as agreed or assessed. 4. The first, second and third defendants are otherwise to pay the plaintiff's costs of the proceedings, as agreed or assessed. The Court notes: 5. Pursuant to the order made by the Registrar on 5 April 2011 the defendants are to pay the plaintiff's costs of his application for verified discovery. ********** 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. Decision last updated: 19 April 2012