Choi v Secretary, Department of Communities and Justice (No 2)

[2022] NSWSC 301

Supreme Court

New South Wales

Medium Neutral Citation:

Choi v Secretary, Department of Communities and Justice (No 2) [2022] NSWSC 301

Hearing dates:

Written submissions

Date of orders:

22 March 2022

Decision date:

22 March 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the applicant is to pay the respondent's costs in the specified gross sum of $8,039.05 plus GST.

Catchwords:

COSTS – Whether costs should follow the event – Whether order should be made in terms of the payment of a gross sum of costs – Order made – No point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Beach Petroleum NL and Claremont Petroleum NLv Johnson (No 2) (1995) 135 ALR 160

Choi v Secretary, Department of Communities and Justice [2022] NSWSC 190

Re Estate Ford; Application for Executor’s Commission [2016] NSWSC 6

Zepinic v Chateau Constructions (Aust) Limited (No 2) [2014] NSWCA 99

Category:

Costs

Parties:

Jae Hee Choi – Applicant
Secretary, Department of Communities and Justice – Respondent

Representation:

Counsel:
Self-represented – Applicant
J Cahill (Solicitor) – Respondent

Solicitors:
Self-represented – Applicant
Open Government, Information and Privacy
Department of Communities and Justice – Respondent

File Number(s):

2021/58322

Publication restriction:

Nil

Judgment

1. In these proceedings. I made orders (the principal judgment) on 9 March 2022 refusing the applicant an extension of time in which to file a summons, and dismissing the summons. [1] At that time I made a further order giving the parties, absent an agreement being reached as to the question of costs, the opportunity to provide written submissions on that question within 7 days.

   1. See Choi v Secretary, Department of Communities and Justice [2022] NSWSC 190.

2. On 16 March 2022 I received written submissions from the respondent, from which I infer that no agreement was reached. Although the applicant sent a number of emails to my Associate making reference to bringing an appeal against my determination, she has not availed herself of the opportunity to provide any submissions as to costs. It is evident from her correspondence to my Associate that she is aware of the orders that I previously made. It is also noted that the email correspondence received from the respondent which attached the respondent’s submissions along with a schedule of the costs incurred, was also forwarded to the applicant.

3. In all of these circumstances I consider that the applicant has had ample opportunity to make any submissions on the issue of costs that she wished to make. I am satisfied that I should proceed to determine that issue.

4. The respondent submitted that there was no reason that costs should not follow the event. In support of that submission, the respondent cited a number of passages of my principal judgment in which I had identified various matters which, in my view, weighed against an order granting the applicant an extension of time in which to file the summons [2] . As previously noted, the respondent’s submissions were accompanied by a schedule detailing the costs incurred in the proceedings which, on the basis of 36.75 hours of work carried out by various persons, total $11,253.20 plus GST. However, the respondent claims only $8,039.05 plus GST.

   2. At [28] – [31].

5. It was the respondent's submission that in light of the history of this litigation, and in light of the amount which was claimed in terms of the respondent’s costs, it was desirable that any further expense associated with a costs assessment be avoided, and that the litigation be brought to an end by the making of an order for lump sum costs pursuant to s 98(4)(d) of the Civil Procedure Act 2005 (NSW) (the CPA).

6. In my view, and in light of my principal judgment, there is absolutely no reason why the Court should depart from the general rule set out in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) that costs follow the event.

7. As to the respondent’s application for a lump sum costs order, s 98(4)(d) of the CPA, that provision is in the following terms:

98   Courts powers as to costs

….

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to--

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

8. Section 98(4) confers a wide discretion on the Court. Although that discretion is often exercised in matters which are lengthy and complex, an order pursuant to s 98(4) is not confined to such cases, but may well be made in cases which fall at the other end of the scale. [3] Relevant factors in the exercise of the discretion include the likely length and complexity of the assessment process. [4] That may become of particular relevance in a case where, as here, a litigant is unrepresented. [5]

   3. See for example Re Estate Ford; Application for Executor’s Commission [2016] NSWSC 6 at [66].

   4. See Beach Petroleum NL and Claremont Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 161 – 164.

   5. See Zepinic v Chateau Constructions (Aust) Limited (No 2) [2014] NSWCA 99 at [29].

9. These proceedings have a tortured history, some aspects of which are set out in the principal judgment. [6] In my view, it is highly desirable that they be brought to an end without further costs being incurred.

   6. At [11] and following.

10. I have had regard to the schedule annexed to the respondent's submissions and in my view, the amount claimed is entirely reasonable.

11. For these reasons I make the following order:

1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the applicant is to pay the respondent's costs in the specified gross sum of $8,039.05 plus GST.

**********

Endnotes