Mackey v Hunter Valley Gardens Pty Ltd (No.2) [2019] NSWDC 168

District Court New South Wales

Medium Neutral Citation: Mackey v Hunter Valley Gardens Pty Ltd (No.2) [2019] NSWDC 168 Hearing dates: On the papers Date of orders: 09 May 2019 Decision date: 09 May 2019 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 37. Catchwords: PRACTICE AND PROCEDURE – costs – power of the Court to set aside earlier costs order. Legislation Cited: Civil Procedure Act 2005 (NSW). Cases Cited: De L v Director-General Department of Community Services (NSW) (No.2) (1997) 190 CLR 207 Griffiths v Australian Broadcasting Commission [2011] NSWCA 145 Habib v Nationwide News Pty Ltd (No.2) [2010] NSWCA 291 Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150 Roads and Traffic Authority of NSW v Palmer (No.2) [2005] NSWCA 1400 Category: Costs Parties: Mr Mackey (Plaintiff) Hunter Valley Gardens Pty Ltd (Defendant) Representation: Counsel: Mr R S Sheldon and Ms E E Welsh (Plaintiff) Mr A Ahmad (Defendant)

Solicitors: Brydens Lawyers (Plaintiff) Holman Webb Lawyers (Defendant) File Number(s): 2017/356821 Publication restriction: Nil

Judgment

Background 1. Judgment was delivered in this matter on 1 May 2019 (the "Principal Judgment"). I directed the Plaintiff to prepare short minutes in accordance with the reasons in the Principal Judgment and invited the parties to make any special application for costs. 2. It is common ground that I should make the following orders: 1. Judgment for the Plaintiff for the sum of $363,243.43; 2. the Defendant is to pay the Plaintiff's costs up to 24 December 2018 on the ordinary basis, and thereafter the Defendant is to pay the Plaintiff's costs on an indemnity basis. 1. The only remaining dispute concerns one aspect of the costs orders. The Plaintiff seeks, and the Defendant opposes, an order that "The Orders of 9 November 2018 made by Letherbarrow DCJ with respect to the costs thrown away by vacation of the hearing date be vacated". What follows presupposes familiarity with the reasons in the Principal Judgment (Mackey v Hunter Valley Gardens Pty Ltd [2019] NSWDC 150). 1. The orders made by Letherbarrow DCJ on 9 November 2018 followed the Plaintiff's application (by notice of motion, filed on 5 November 2018) to rely upon a psychiatrist report from Dr Kaplan (dated 18 September 2018) and to amend his Statement of Particulars to add a claim of psychiatric injury. The motion was heard and determined only five days before the scheduled commencement of the trial, being 14 November 2018. That hearing date had been set down, at a status conference in the matter, on 13 June 2018. 2. His Honour allowed the application but, relevantly, ordered that the hearing date of 14 November 2018 be vacated, with the Plaintiff to pay the costs thrown away. His Honour's costs order was made after argument had been allowed on the point; once it was clear that his Honour would make the other procedural orders. Counsel for the Plaintiff had urged that costs of the application be reserved. 3. Essentially, the Plaintiff's application for vacation of the earlier costs order is based upon the notion that the true picture of the events, both before and after the order for vacation was made, indicates that that order should not have been made. There was no suggestion that if the order vacating the hearing on 14 November was appropriate, then the exercise of the discretion to order that the Plaintiff pay the costs thrown away miscarried. But the circumstance that the order for vacation was incorrectly made (premised upon an erroneous state of affairs) and a costs order resulted meant that unless the earlier costs order was set aside, then an injustice will have been perpetrated upon the Plaintiff, by his incurring a costs liability that he should not have to bear. 4. Accordingly, consideration of this application invites the Court to conduct a review of the relevant circumstances which led Letherbarrow DCJ to make the costs order that his Honour made on 9 November 2018, and ascertain the extent to which subsequent developments in the litigation indicate that this earlier order remains justified. 5. There are two principal questions which arise from this application: (a) whether I have the power to vacate the earlier costs order; and (b) (assuming the Court has such power) whether I should vacate the earlier costs order. The latter question incorporates the question whether and to what extent any discretion falls in favour or against the order; the exercise of which is shaped, amongst other things, by the case management principles in ss 56-60 of the Civil Procedure Act 2005 (NSW).