Johnston v The Greens NSW (No 2) [2020] NSWSC 10

Supreme Court New South Wales

Medium Neutral Citation: Johnston v The Greens NSW (No 2) [2020] NSWSC 10 Hearing dates: On the papers Date of orders: 16 January 2020 Decision date: 16 January 2020 Jurisdiction: Equity Before: Robb J Decision: The Court:

(1) Orders that the first and second plaintiffs pay the first, fourth and fifth defendants' costs of the proceedings on the ordinary basis, to be assessed from 20 February 2019. Catchwords: COSTS – departure from the usual rule – public interest litigation – where plaintiffs were wholly unsuccessful in their claim against the first defendant which is a political party registered under the Electoral Act 2017 (NSW) – where plaintiffs seek orders that the first defendant pay their costs and the costs of the active defendants – where plaintiffs and other defendants members of the first defendant – where plaintiffs claim to have no vested financial or political interest in the proceedings – where proceedings involved no question of public importance – where outcome would only affect a small number of people – no reason to depart from the usual rule

COSTS – pre-commencement costs of proceedings – whether Court has power to award pre-commencement costs of proceedings – where a substantial amount of legal work was undertaken well before the originating process was filed – where the dispute ripened into litigation in an extraordinarily fast fashion – good reason to make a specific order that costs be awarded from a date before the filing of the summons – Chow v Chow (No 2) (2015) 229 BPR 35,385; [2015] NSWSC 1348 applied Legislation Cited: Associations Incorporation Act 2009 (NSW) Civil Procedure Act 2005 (NSW), s 98 Conveyancing Act 1919 (NSW), s 66G Electoral Act 2017 (NSW) Environmental Planning and Assessment Act 1979 (NSW), s 123 Land and Environment Court Act 1979 (NSW), s 69 Supreme Court Act 1970 (NSW), ss 23, 63 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Botany Bay City Council v Minister for Local Government (No 2) [2016] NSWCA 127 Chow v Chow (No 2) (2015) 229 BPR 35,385; [2015] NSWSC 1348 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Darlinghurst Residents' Association v Elarose Investments Pty Ltd [No 3] (1992) 75 LGRA 214 Edwards v Santos Ltd (2011) 242 CLR 421; [2011] HCA 8 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 Horswill v McClellan (No 2) [2019] NSWSC 964 Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) (2016) 93 NSWLR 704; [2016] NSWCA 375 Hurstville Municipal Council v Connor (1991) 24 NSWLR 724 Johnston v The Greens NSW [2019] NSWSC 215 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Minister for Planning v Walker (No 2) [2008] NSWCA 334 Oshlack v Richmond River Council (1990) 193 CLR 72; [1990] HCA 11 Re Gibson's Settlement Trusts [1981] Ch 179 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Category: Costs Parties: Daryl Lindsay Johnston (First Plaintiff) Christopher David Harris (Second Plaintiff) The Greens NSW (First Defendant) Christopher Maltby (Second Defendant) Amalina Wallace (Third Defendant) David Shoebridge (Fourth Defendant) Abigail Boyd (Fifth Defendant) Dawn Walker (Sixth Defendant) Riki Scanlan (Seventh Defendant) David Mallard (Eighth Defendant) Representation: Counsel: M Auld (Plaintiffs) D Hume (First Defendant) R Mansted (Fifth Defendant)