Dickens v State of New South Wales (No 4)

[2018] NSWSC 666

Supreme Court

New South Wales

Medium Neutral Citation:	Dickens v State of New South Wales (No 4) [2018] NSWSC 666
Hearing dates:	On the papers
Decision date:	14 May 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Order the plaintiff to pay the defendant’s costs of the proceedings. (2) Order the plaintiff to pay the defendant’s costs in the specified gross sum of $32,000.
Catchwords:	COSTS – whether costs should be reserved given appeal foreshadowed – application for costs to be paid in a specified gross sum – appropriate in circumstances of the case
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	Hamod v State of New South Wales [2011] NSWCA 375 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Category:	Costs
Parties:	Mr Dickens (a pseudonym) (Plaintiff) State of New South Wales (First Defendant)
Representation:	Counsel: Mr Dickens (Plaintiff, in person) E W L Anderson (First Defendant)   Solicitors: Makinson d’Apice Lawyers (First Defendant)
File Number(s):	2017/69511
Publication restriction:	Nil

Judgment

Introduction

1. On 19 April 2018 I dismissed these proceedings and ordered that, subject to an application for a different order being made, the plaintiff ought pay the defendant’s costs of the proceedings: Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [50]. The plaintiff sought an order that costs be reserved on the basis that he proposed to appeal against my orders. The defendant accepted that costs on the ordinary basis ought follow the event and applied, by notice of motion dated 26 April 2018, for an order that costs be paid in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) (the Act).

Whether a costs order ought be made

2. The only basis on which the plaintiff opposed an order that he pay the defendant’s costs of the proceedings was that he proposes to appeal and that, if the appeal was upheld, the defendant’s entitlement to costs would fall away. I am not persuaded that I should not make an order for costs on that basis. If an appeal against my orders dismissing the proceedings is upheld, the Court of Appeal can set aside the costs order. If the appeal is dismissed, the costs order will stand. It is, in my view, desirable in the interests of justice that all outstanding issues be dealt with by me prior to any consideration of any appeal. I do not consider that there is any reason to depart from the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. The defendant has been wholly successful and ought have the benefit of an order for costs.

Whether costs ought be ordered to be paid in a gross sum

3. The plaintiff has confirmed that he opposes the defendant’s application that the costs should be ordered to be paid in a gross sum. However, the only basis articulated for his opposition is the same basis on which the making of a costs order (other than that costs be reserved) was opposed.

4. The defendant has applied for an order pursuant to s 98(4)(c) of the Act that the plaintiff pay its costs of the proceedings in the gross sum of $32,825.92. This figure represents 70% of counsel’s professional fees ($10,500) and 70% of the defendant’s solicitor’s professional fees and disbursements. ($22,325.92). These figures are derived from the evidence referred to below.

5. The defendant’s application is supported by an affidavit of Sanjay Selvakumaran dated 26 April 2018. Mr Selvakumaran’s unchallenged evidence is that the total professional fees and disbursements incurred by the defendant up to and including 27 March 2018 are $28,717.17 excluding GST. Counsel’s fees of $15,000 are attributable to invoices rendered by Edward Anderson, counsel for the defendant. Mr Anderson’s hourly rate was $175 and his daily rate was $1,200 (excluding GST). A further sum of $3,177 has been incurred but charged to the defendant.

6. Mr Selvakumaran annexed a copy of a National Personal Insolvency Index performed on 26 April 2018 which indicated that there were no records for the plaintiff. A land registry services search indicated that the plaintiff owns no real property. Mr Selvakumaran also annexed documents which the plaintiff had attached to his statement of particulars filed on 6 March 2017. These documents included a Centrelink statement dated 1 March 2017 which recorded that the plaintiff was in receipt of a Newstart Allowance; and a notice of assessment for the year ended 30 June 2012 which showed that the plaintiff’s taxable income for that year was $32,120; a notice of assessment for the year ended 30 June 2013 which noted taxable income of $14,493; a notice of assessment for the year ended 30 June 2014 which showed taxable income of $24,222; and a notice of assessment for the year ended 30 June 2015 which showed taxable income of $23,400. I am satisfied on the basis of this evidence that the defendant will probably have difficulties in recovering the costs of the proceedings and that the cost of any costs assessment process is unlikely to be recoverable.

7. The history of the proceedings is also relevant. The plaintiff commenced the proceedings on 6 March 2017. There were several directions hearings and three contested interlocutory applications (9 August 2017; 3 November 2017 and 18 April 2018). The plaintiff has proposed four versions of his pleading, each of which was at least 40 pages in length.

8. I am satisfied that it is appropriate to make an order under s 98(4) of the Act that costs be paid in a gross sum. It would undesirable for the defendant, as the successful party, to be obliged to spend further sums (which may be irrecoverable) in order to have the costs assessed: Hamod v State of New South Wales [2011] NSWCA 375 at [816]-[817] (Beazley JA, Giles and Whealy JJA agreeing).

9. The plaintiff’s claim reflects an acceptance that, because the full assessment process has not been engaged, it is appropriate to apply a discount when assessing costs on a gross sum basis: Hamod vState ofNew South Wales at [814]; Penson v Titan National Pty Ltd (No3) [2015] NSWCA 121 at [7] (Campbell AJA). The costs and disbursements incurred by the defendant are reasonable and have been appropriately discounted to reflect the broad brush nature of such an application. Further, the defendant has not included in the amount of the gross sum sought the additional costs of the notice of motion for the order under s 98(4) of the Act, to which it would otherwise be entitled. I have rounded down the figure sought by the defendant to reflect the nature of the judgment that leads to the specification of an appropriate gross sum.

Orders

10. For the reasons set out above, I make the following orders:

1. Order the plaintiff to pay the defendant’s costs of the proceedings.

2. Order the plaintiff to pay the defendant’s costs in the specified gross sum of $32,000.

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Decision last updated: 14 May 2018