Dubow v Mid-Western Regional Council

[2021] NSWSC 922

Supreme Court

New South Wales

Medium Neutral Citation:

Dubow v Mid-Western Regional Council [2021] NSWSC 922

Hearing dates:

On the papers

Decision date:

28 July 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Order that the plaintiff pay the defendant’s costs of the proceedings in the gross sum of $70,000.

Catchwords:

COSTS — Application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) — Plaintiff unsuccessful at final hearing and various pre-trial applications — Need for several directions hearings and notices of motion prior to final hearing arose because of plaintiff’s conduct — Reduction of gross sum to ensure plaintiff is not prejudiced by the application

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Cases Cited:

Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294

Dubow v Mid-Western Regional Council [2021] NSWSC 225

Dubow v Mid-Western Regional Council [2021] NSWSC 699

Dubow v Mid-Western Regional Council [2021] NSWSC 767

Category:

Costs

Parties:

Yolande Dubow (Plaintiff)
Mid-Western Regional Council (Defendant)

Representation:

Counsel:
In person (Plaintiff)
S Fitzpatrick (Defendant)

Solicitors:
Not applicable (Plaintiff)
Lindsay Taylor Lawyers (Defendant)

File Number(s):

2019/381044

Judgment

Introduction

1. On 25 June 2021, I made an order for costs in favour of the defendant, Mid-Western Regional Council (the Council), and granted liberty to the defendant to apply for an order that the costs be paid in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW): Dubow v Mid-Western Regional Council [2021] NSWSC 767.

2. On 8 July 2021, the Council applied for an order that its costs be paid in a gross sum of $80,000 and supported its application with an affidavit of Anna Sinclair, the Council’s solicitor, affirmed on 8 July 2021. I directed that Yolande Dubow (the plaintiff) provide any submissions or evidence in response by 4pm on 23 July 2021. No submissions or evidence were received from the plaintiff in opposition to the Council’s application.

The procedural history of the matter

3. In her affidavit, Ms Sinclair deposed to the lengthy and complex progress of the matter from the time of the filing of the summons on 3 December 2019 to the final hearing on 10 June 2021. It is not necessary to recount the procedural history in any detail: some of which appears in Dubow v Mid-Western Regional Council [2021] NSWSC 699, my substantive judgment in the proceedings and some of which appears in Gleeson J’s judgment in Dubow v Mid-Western Regional Council [2021] NSWSC 225.

4. It is sufficient to note that the plaintiff commenced the proceedings by filing two separate summonses and then failed to appear at directions hearings to confirm which of the summons was to stand. She subsequently filed an amended summons on 12 March 2020 which claimed different relief again. By April 2020, the Council’s costs comprised solicitor/client costs of about $9,700 excluding GST.

5. By notice of motion filed on 14 May 2020, the Council sought dismissal of the amended summons filed on 12 March 2020 and of the proceedings generally. By notice of motion filed on 27 May 2020, the plaintiff sought leave to file a further amended summons. These motions were listed for hearing on 4 September 2020. However, the hearing was adjourned to 10 March 2021 to permit the plaintiff to obtain pro bono legal assistance.

6. The Council incurred significant costs in the preparation of its application, in responding to the plaintiff’s application and in the hearing of the applications before Gleeson J on 10 March 2021 (which were heard within a single day). These costs amounted to approximately $46,400, which comprised about $35,700 in solicitor/client costs and about $10,700 in counsel’s fees. Justice Gleeson ordered that the costs of the Council’s notice of motion be its costs in the cause and the costs of the plaintiff’s notice of motion be her costs in the cause. Accordingly, the plaintiff is not liable to pay the Council’s costs of her notice of motion, although she is liable to pay the Council’s costs of its notice of motion. It is difficult to differentiate between the costs associated with each notice of motion. Further, Ms Sinclair deposed that the Council read its evidence on the motions in the substantive hearing. Accordingly, the costs incurred by the Council on the motions would have been incurred in any event by reason of the substantive proceedings. However, I consider that there should be some deduction from the total sum claimed to take account of Gleeson J’s order regarding the plaintiff’s notice of motion.

7. The costs of the final hearing amounted to a total of $45,090, which included solicitor/client costs of $21,510 and counsel’s fees of $23,580. These costs were incurred in responding to the further amended summons filed on 17 March 2021, in which the plaintiff sought judicial review of the Council’s decisions to impound (in May 2019) and sell (in August 2019) seven of her alpacas and to impound (in February 2020) and sell (in March 2020) a further three of her alpacas. The further amended summons listed 14 grounds. The plaintiff relied on 13 affidavits at the final hearing.

8. The total of $45,090 also included the costs associated with the following pre-trial applications.

9. On 8 September 2020, the plaintiff applied for leave to issue a subpoena to Bill Lawson, Director of McDonald Lawson, the firm which had sold the alpacas. The Council successfully applied by notice of motion to have the subpoena set aside. It also successfully resisted the plaintiff’s appeal to Campbell J against the Registrar’s decision to set aside the subpoena.

10. Prior to the final hearing, the plaintiff served a notice to produce which the Council successfully moved to set aside after a contested hearing before the Registrar. The Council’s costs in respect of this notice of motion were $10,312, which comprised solicitor/client costs of $3,592 and counsel’s costs of $6,720.

11. Ms Sinclair set out the costs of each person who performed work on the matter at Lindsay Taylor Lawyers as well as Simon Fitzpatrick, counsel briefed in the matter. The fees charged by each of these individuals were reduced by reason of the Council’s status as a local government authority, which was accepted by those providing legal services to it in this matter to entitle it to discounted rates.

12. The total costs incurred by the Council in the proceedings were $111,500 excluding GST, which comprised $70,500 in solicitor/client fees and disbursements and $41,000 in counsel’s fees. The Council has sought an order that the plaintiff pay its costs in the gross sum of $80,000, which equates to approximately 60% of its solicitor/client costs and 90% of its disbursements, including counsel’s fees.

Consideration

13. The relevant principles for awarding a gross sum for costs were set out by the Court of Appeal (Beazley P, Meagher and Payne JJA) in Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294 (Bechara) in the following passage:

“[12]    The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742–723 [21]–[22]; Beach Petroleum NL v Johnson (No 2)(1995) 57 FCR 119 at 123.

[13]    The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing).

[14]    A ‘broad brush’ approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3  [2015] NSWCA 121 at [7].

[15]    The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].

...

[18]    The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamod v New South Wales at [816]–[817] is apposite.”

14. But for the matter I have referred to above, which results from the costs order made by Gleeson J, I consider these estimates to be reasonable as well as very conservative and that the appropriate sum can be determined from the available evidence. I regard the costs of the proceedings as disproportionate to what was at stake, which was ultimately the legal validity of the Council’s decisions as to impounding and sale. Once the hearing was confined to the relevant issues, it was heard in less than a day. However, the need for several directions hearings and notices of motion prior to the final proceedings arose because of the way in which the plaintiff conducted the proceedings and the forensic steps which she took, such as serving a notice to produce which was set aside and seeking leave to issue a subpoena which was also found to have been inappropriate.

15. I am also satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made.

16. As referred to in the passage from Bechara extracted above, a broad brush approach is called for and the party asking for a gross sum costs order does so on the basis that a discount will be applied. It is not possible to discern with any degree of specificity what costs ought be attributable to those of the plaintiff’s applications which were heard on 10 March 2021. In these circumstances, I propose to reduce the gross sum of $80,000 sought by the Council to $70,000. While this may seem to be a substantial reduction, I am satisfied that it is required to ensure that the plaintiff is not prejudiced by the application for a gross sum costs order.

17. For these reasons, I make the following order:

1. Order that the plaintiff pay the defendant’s costs of the proceedings in the gross sum of $70,000.

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Decision last updated: 28 July 2021