Day v Harness Racing New South Wales (No 4) [2015] NSWSC 1662

Supreme Court New South Wales

Medium Neutral Citation: Day v Harness Racing New South Wales (No 4) [2015] NSWSC 1662 Hearing dates: 16 October 2015 Date of orders: 16 October 2015 Decision date: 16 October 2015 Jurisdiction: Common Law Before: McCallum J Decision: Each party bear his or its costs of the second listing hearing. Catchwords: COSTS – exceptions to the general rule that costs follow the event – multiple issues – partial success – each party to bear his or its own costs Cases Cited: Day v Harness Racing New South Wales (No 2) [2015] NSWSC 1455 Day v Harness Racing New South Wales (No 3) [2015] NSWSC 1461 Category: Costs Parties: Neil Anthony Day (first plaintiff) Dean Albert McDowell (second plaintiff) Harness Racing New South Wales (defendant) Representation: Counsel: T Molomby SC with B Miles (plaintiffs) ATS Dawson (defendant)

Solicitors: Pendlebury Workplace Law (plaintiffs) Cockburn & Co (defendant) File Number(s): 2014/367597 Publication restriction: None

Judgment – Ex Tempore 1. HER HONOUR: These proceedings came before the Court for the second listing in accordance with PN SC CL 4 on 15 September 2015. The hearing of the matters raised by each party on that day took almost the whole day. The applications by each party were hard fought and there was, as both parties frankly concede, a mixed result: see my judgments in Day v Harness Racing New South Wales (No 2) [2015] NSWSC 1455 and Day v Harness Racing New South Wales (No 3) [2015] NSWSC 1461. 2. Today, the matter has come before the Court for further directions and argument as to costs. The plaintiffs submit that the defendant should pay half their costs of the second listing hearing. The defendant submits that the plaintiffs should pay seventy-five percent of its costs of the hearing. 3. Each party submitted in support of his or its application for costs that there should be a differential order, on grounds suggesting different ways in which the costs might be differentiated according to the results recorded in my judgments. 4. Mr Molomby of Senior Counsel, who appears with Mr Miles for the plaintiffs, provided a schedule, initially generated within the office of those representing the defendant, setting out, item by item, the alleged success on each issue. There was a robust dispute even as to the accuracy of that schedule as finalised by the plaintiffs. It is not possible in a matter of this kind to apply a mathematical approach on that basis. In my view, it is an unsatisfactory way in which to determine such competing applications. 5. A complexity of determining the fair costs result in the proceedings is that by far the larger part of the argument was occupied with what I described in Day (No 2) as "a difficult question" as to the impact of an evidentiary clause on the plaintiffs' entitlement to discovery. The complexity of that issue was reflected in the amount of time spent on it in argument. Ultimately, however, I resolved it in a way focused more on the content of the practice note governing proceedings in the defamation list (SC CL 4) than the substantive legal issues raised. 6. Mr Molomby has submitted that more time was spent on that issue than was necessary. Mr Dawson, appearing for the defendant, submits with equal force that it was an issue of some complexity and that it was not appropriate for the defendant to make any assumption as to the basis on which the Court might determine it. Each party's position on those various issues has some force and conversely something that can be said against it. 7. In my view, this issue is best determined according to the impression I formed during the hearing and as further informed by the careful attention I had to give to the detail of those matters over the several sessions it took me to write the two judgments. 8. In my impression, each party took some points well and took some points that might, upon reflection, have been conceded more readily. My impression is that, overall, the fair result as to costs is that each party bear his or its costs of the second listing hearing and that is the order I make. Otherwise I make orders 1 and 2 in the short minutes handed up by Mr Dawson.