Bowers v NSW Legal Services Commissioner (Costs)

[2021] NSWSC 1357

Supreme Court

New South Wales

Medium Neutral Citation:

Bowers v NSW Legal Services Commissioner and Ors (Costs) [2021] NSWSC 1357

Hearing dates:

Written submissions

Date of orders:

25 October 2021

Decision date:

25 October 2021

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The plaintiff is to pay the costs of the New South Wales Legal Services Commissioner of the proceedings, including the costs of the amended notice of motion filed by the plaintiff and dated 28 April 2021, as agreed or assessed.

(2) The plaintiff is to pay the costs of Ms Madeleine Bridgett of the amended notice of motion filed by the plaintiff and dated 28 April 2021, as agreed or assessed.

Catchwords:

COSTS – No point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bowers v NSW Legal Services Commissioner and ors [2021] NSWSC 1095

Karam v Palmone Shoes Pty Limited [2012] VSCA 97

Category:

Costs

Parties:

James Richard Bowers – Plaintiff
Madeleine Bridgett – First Defendant
James Behringer – Second Defendant
Harris & Co – Third Defendant
Alvin Ng – Fourth Defendant
NSW Legal Services Commissioner – Fifth Defendant

Representation:

Counsel:
Self-represented – Plaintiff
J Curtin – First Defendant
J Behringer (Solicitor) – Second, Third and Fourth Defendants
R Withana – Fifth Defendant

Solicitors:
Self-represented – Plaintiff
Moray & Agnew – First Defendant
Harris & Co – Second, Third and Fourth Defendants
Office of the Legal Services Commissioner NSW – Fifth Defendant

File Number(s):

2021/9177

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 6 October 2021[1] I delivered judgment dismissing proceedings brought by the plaintiff against the New South Wales Legal Services Commissioner. I also made an order dismissing an amended notice of motion dated 28 April 2021 (the motion) in which the plaintiff sought to file an amended summons which named five defendants, to whom I referred in the judgment as follows:

   1. Bowers v NSW Legal Services Commissioner and ors. [2021] NSWSC 1095

1. Madeleine Bridgett (the first defendant);

2. James Behringer (the second defendant);

3. Harris & Co (the third defendant);

4. Alvin Ng (the fourth defendant); and

5. NSW Legal Services Commissioner (the fifth defendant).

2. The only defendant who was named in the summons commencing the proceedings was the NSW Legal Services Commissioner. The effect of the orders sought by the plaintiff in the motion was to join four additional defendants to the proceedings, in the absence of any order being sought pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (the rules).

3. Having made the orders referred to in [1] above, I ordered that each party provide written submissions as to costs within seven days. As to that order:

1. I have received no submissions from the plaintiff;

2. each of the second, third and fourth defendants has indicated that no order for costs is sought;

3. the New South Wales Legal Services Commissioner (the Commissioner) seeks an order for the costs of the proceedings on the ordinary basis; and

4. Ms Bridgett seeks an order for her costs of the motion on the ordinary basis.

Submissions of the New South Wales Legal Services Commissioner

4. Counsel submitted that there was no reason why costs should not follow the event, and that the plaintiff should therefore pay the Commissioner’s costs of the proceedings. Counsel also submitted that the fact that the plaintiff is legally qualified, but was self-represented, did not militate against an order for costs being made in the Commissioner’s favour. [2]

   2. Karam v Palmone Shoes Pty Limited [2012] VSCA 97 at [36].

Submissions of Ms Bridgett

5. Counsel for Ms Bridgett acknowledged that having dismissed the proceedings pursuant to the Commissioner’s motion, it had not been necessary for me to determine the motion on its merits. However, counsel submitted that Ms Bridgett had nevertheless come to defend the motion and that in those circumstances I should, in the exercise of my discretion, award Ms Bridgett her costs of the motion on the ordinary basis. Counsel adopted the submissions made on behalf of the Commissioner set out in [4] above as to the plaintiff’s status as a self-represented litigant.

Consideration

6. Section 98(1) of the Civil Procedure Act 2005 (NSW) confers a wide discretion on the court in relation to an award of costs and is in the following terms:

Courts powers as to costs

(1) Subject to rules of court and to this or any other Act--

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

7. Rule 42.1 of the rules is in the following terms:

General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

8. Given that the Commissioner was successful in having the plaintiff’s proceedings dismissed, there is no reason why costs should not follow the event. Those costs should include the costs of the motion.

9. Having come to the conclusion that the proceedings should be dismissed, it followed that the motion was also dismissed. The effect of the orders sought in the motion, at least in part, was to join Ms Bridgett as a defendant to the proceedings. Counsel for Ms Bridgett took an active part on the hearing of the motion, and made lengthy and detailed submissions opposing the orders which were sought. In all of these circumstances, there is no reason why my discretion should not be exercised in favour of Ms Bridgett in respect of her costs of the motion.

Orders

10. I make following orders:

1. The plaintiff is to pay the costs of the New South Wales Legal Services Commissioner of the proceedings, including the costs of the amended notice of motion filed by the plaintiff and dated 28 April 2021, as agreed or assessed.

2. The plaintiff is to pay the costs of Ms Madeleine Bridgett of the amended notice of motion filed by the plaintiff and dated 28 April 2021, as agreed or assessed.

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Endnotes