Clarke v Fenn (No 2)

Case [2018] NSWDC 417

District Court


New South Wales

Medium Neutral Citation: Clarke v Fenn (No 2) [2018] NSWDC 417
Hearing dates: 20 December 2018
Date of orders: 20 December 2018
Decision date: 20 December 2018
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Pursuant to s 98(4) Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendant’s costs in the gross sum of $7,000.

Catchwords: COSTS – application for gross sum costs order under s 98(4) Civil Liability Act 2005 (NSW)
Legislation Cited: Bankruptcy Act 1966 (Cth), s 60
Civil Procedure Act 2005 (NSW), ss 56 and 98
Uniform Civil Procedure Rules 2005 (NSW), r 10.5
Cases Cited: Barach v The University of New South Wales [2011] NSWSC 1327
Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863
Clarke v Fenn [2018] NSWDC 336
Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226
Ghosh v Miller (No 2) [2017] NSWSC 791
Hamod v New South Wales [2011] NSWCA 375
Kostov v Zhang (No 2) [2016] NSWCA 279
Mbuzi v Griffith University [2014] FCA 1323
Mowen v Rockhampton Regional Council [2018] QSC 44
Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526
Paciocco v Australia and New Zealand Banking Group Limited (No 2) [2017] FCAFC 146
Sangare v Northern Territory of Australia [2018] NTCA 10
The Northern Territory of Australia v Sangare [2018] HCATrans 254
Wilson v Bauer Media Pty Ltd (Costs) [2018] VSC 161
Texts Cited: Justice Geoffrey Nettle, ‘Technology and the Law’ (Paper presented at the Bar Association of Queensland Annual Conference, Brisbane, 27 February 2016)
Zuckerman, A., ‘No Justice without Lawyers – the myth of an inquisitorial solution’ (2014) 33 Civil Justice Quarterly 355
Category:Costs
Parties: Plaintiff: Sharmain Daisy Clarke
Defendant: Maria Fenn
Representation:

Counsel:
Plaintiff: In person
Defendant: Mr D Sibtain

  Solicitors:
Plaintiff: In person
Defendant: Hicksons Lawyers
File Number(s): 2018/277318
Publication restriction: None

Judgment

The application before the court

  1. The plaintiff commenced proceedings for defamation on 10 September 2018 for a slander made by the defendant on 17 September 2015. In my judgment Clarke v Fenn [2018] NSWDC 336, I made orders dismissing those proceedings as follows:

  1. Notice of motion filed on 30 September 2018 dismissed.

  2. These proceedings are struck out and dismissed.

  3. The plaintiff is to pay the defendant’s costs.

  4. Liberty to apply in relation to costs.

  5. Exhibits retained for 28 days.

  1. Pursuant to the liberty granted in order 4 above, the defendant brings an application pursuant to s 98(4) Civil Procedure Act 2005 (NSW) for a gross sum costs order.

  2. The plaintiff does not challenge the making of a costs order against her, or the mechanics of the claim as quantified. Her objections relate essentially to the size of the sum sought, namely $7,000.

The evidence

  1. The defendant relied upon the affidavits of Chloe Mae Ellis sworn on 5 and 13 December 2018 and a bundle of material relevant to the quantum of the costs. The costs as assessed are as follows:

Professional costs

$19,207.20

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Details
AGLC
Clarke v Fenn (No 2) [2018] NSWDC 417
Case
[2018] NSWDC 417
Decision Date

CaseChat Overview and Summary

In the case of Clarke v Fenn (No 2), the plaintiff sought a gross sum costs order against the defendant, as permitted by section 98(4) of the Civil Liability Act 2005 (NSW). The dispute arose from an unsuccessful attempt by the plaintiff to recover damages for personal injury sustained in a motor vehicle accident. The court was tasked with determining whether the plaintiff was entitled to an order for the defendant to pay the costs in a gross sum, as opposed to the usual detailed assessment of costs.

The central legal issue before the court was whether the plaintiff's application for gross sum costs was justified under the statutory provisions. The court considered whether the plaintiff's claim was frivolous or vexatious, or whether it had been conducted in a manner that warranted a departure from the usual cost-bearing rules. The court also examined the proportionality of the costs incurred in relation to the overall claim.

The court found that the plaintiff's claim was not frivolous or vexatious, but it did not have reasonable prospects of success. Given the nature of the claim and the manner in which it was pursued, the court deemed it appropriate to order the plaintiff to pay the defendant's costs in a gross sum. The court concluded that a detailed assessment of costs would not be proportionate to the outcome, and that the gross sum order was a fair reflection of the costs incurred by the defendant. The plaintiff was ordered to pay the defendant's costs in the gross sum of $7,000, as permitted by section 98(4) of the Civil Procedure Act 2005 (NSW).

Orders

Orders of the court

(1) Pursuant to s 98(4) Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendant’s costs in the gross sum of $7,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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