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 10.5Cases 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 161Texts 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 355Category: Costs Parties: Plaintiff: Sharmain Daisy Clarke
Defendant: Maria FennRepresentation: Counsel:
Solicitors:
Plaintiff: In person
Defendant: Mr D Sibtain
Plaintiff: In person
Defendant: Hicksons Lawyers
File Number(s): 2018/277318 Publication restriction: None
Judgment
The application before the court
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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:
Notice of motion filed on 30 September 2018 dismissed.
These proceedings are struck out and dismissed.
The plaintiff is to pay the defendant’s costs.
Liberty to apply in relation to costs.
Exhibits retained for 28 days.
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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.
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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
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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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- AGLC
- Clarke v Fenn (No 2) [2018] NSWDC 417
- Case
- [2018] NSWDC 417
- Decision Date
CaseChat Overview and Summary
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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