Colquhoun v District Court of New South Wales (No 2)

[2015] NSWCA 54

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54
Hearing dates:	On the papers
Decision date:	18 March 2015
Before:	Beazley P; Barrett JA; Leeming JA
Decision:	Notice of motion filed 5 January 2015 dismissed.
Catchwords:	COSTS – application for lump sum costs order – no evidentiary basis for exercising discretion to make order – application dismissed.
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60
Cases Cited:	Colquhoun v District Court of New South Wales [2014] NSWCA 460 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Category:	Costs
Parties:	Darren Colquhoun (Applicant) District Court of New South Wales (First Respondent) Director-General, Department of Family and Community Services (Second Respondent) DF (Third Respondent) Anne Mowbray (Independent Legal Representative)
Representation:	Counsel: Applicant (In person) D Ward (Second Respondent) Third Respondent (In person) P Guterres (Fourth Respondent) Solicitors: Crown Solicitor (Second Respondent)
File Number(s):	2014/41852
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the names of the 3rd Respondent and the children have been suppressed.
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 3 December 2013; 11 December 2013 Before: Olsson DCJ; Truss DCJ File Number(s): 2013/225071

Judgment

1. THE COURT:  By judgment delivered on 22 December 2014, this Court dismissed Mr Colquhoun’s summons with costs:  Colquhoun v District Court of New South Wales [2014] NSWCA 460. Paragraph 62 was in the following terms, and has led to the motion presently before the Court:

“There is no reason for the Father not to pay the respondents' costs. It is plain from the foregoing, which does not by any means reproduce the entirety of the procedural record, that the Father has in some respects taken an approach of contesting every point, small or large, where he feels himself slighted. The costs order to which the other parties are entitled should not be rendered nugatory by the prospect of disproportionate disputation by him. Accordingly, I indicate that this is a case where, should any respondent so wish, a lump sum costs order would be appropriate: see the authorities mentioned in Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [29]. Any party who wishes to make such an application should do so in accordance with UCPR r 36.16, and the application will be dealt with on the papers.”

2. By notice of motion filed 5 January 2015, the Secretary of the Department of Family and Community Services (formerly known as the Director-General) has applied for a lump sum costs order, in the amount of $22,000. The application is supported by an affidavit of a solicitor employed in the Crown Solicitor’s Office affirmed on 5 January 2015 and submissions signed by another solicitor in that office filed on 17 February 2015. It is opposed by Mr Colquhoun who has sworn an affidavit on 2 February 2015 and supplied submissions dated 2 March 2015.

3. Both active parties’ submissions range beyond the matters in issue on the motion. Most of the submissions filed in support are directed to obtaining an order for costs: see paragraphs 2, 4-10 and 18. That order has already been made. For his part, Mr Colquhoun seeks an order that the existing costs order be set aside and be replaced with an order that the parties pay their own costs. This has already been decided adversely to him. Mr Colquhoun also asks “for an oral hearing to give further evidence out of matters arising”. That too has already been determined: see [62] in the principal judgment referred to above. That course accords with s 60 of the Civil Procedure Act 2005 (NSW); the subject matter of the only remaining dispute is whether the costs to which the Secretary are entitled should be determined by this Court or in accordance with the ordinary process of assessment. Since the only dispute is about the way in which an existing entitlement as to costs is quantified, it is essential that the costs of resolving it be kept to a minimum.

4. In support of the application, the Director-General’s submissions refer to the delay in preparing the proceedings for hearing as well as the protracted nature of the proceedings in the Children’s Court in 2013 and the current proceedings in the District Court. The submission concludes as follows:

“The Secretary respectfully submits that, in the circumstances of this matter, and based upon the history of litigation between the Secretary and Mr Colquhoun, the process of assessing costs in this matter would cause further expense for the Secretary and undue delay. It is also possible that Mr Colquhoun will be unlikely to be able to meet the order resulting from the assessment of costs. As such, a lump sum costs order is appropriate:  Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [29]; Harrison v Schipp [2002] NSWCA 213 at [21]-[22].”

5. As much may be accepted. However, the only affidavit evidence as to the costs incurred is as follows:  

“The second respondent’s cost and disbursements in this matter to date total $31,491.90 (excluding GST), which includes Counsel’s fees and disbursements totalling $12,825.00 (excluding GST).”

6. The power to make a lump sum costs order “should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available”:  Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 at [22]; Hamod v State of New South Wales [2011] NSWCA 375 at [813].

7. The material supplied by the Secretary, which is a bare statement of total costs and disbursements, does not permit the Court to have any confidence that $22,000 (or some other amount) is an appropriate sum. The evidence is completely silent as to (a) the timing and nature of costs incurred, (b) the rates at which lawyers charged, and (c) the amount likely to be recoverable on assessment in the event that that took place. There is substantially less evidentiary material than what was held to be insufficient in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11. In that decision, Barrett J concluded at [56]:

“Because the material on which NGC relies upon this application is insufficient to ground a well-informed exercise of the discretion to make a gross sum costs order, the court will not make such an order; and this is so despite the matters of complexity of costs assessment and impecuniosity of the plaintiffs liable for costs that would otherwise make such an order appropriate.”

8. The same approach applies here, in circumstances where the application is made after the event, to a Court which is not fully apprised of the procedural history of the litigation. It is neither necessary nor appropriate to identify the minimum which is required in such a case, which in any event will depend upon the nature and complexity of the litigation. It suffices to say that in the circumstances of the present case, more is required in order for there to be a well-informed exercise of discretion. The notice of motion filed 5 January 2015 must be dismissed.

9. There is no indication that Mr Colquhoun has incurred any costs. Even if that were not the case, there should be no order as to the costs of the notice of motion, in circumstances where Mr Colquhoun raised a series of extraneous matters and did not raise the point on which he succeeded. So that there may be no doubt about it, the result of the dismissal of the Secretary’s motion is that the Secretary may seek to have the costs ordered on 22 December 2014 assessed in the usual way.

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Decision last updated: 18 March 2015