Dubow v Mid-Western Regional Council

[2021] NSWSC 767

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Decision date:

25 June 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Confirm order (3) made on 16 June 2021 that the plaintiff pay the defendant’s costs of the proceedings and order that such costs include the costs of the application for costs.

(2) Grant liberty to the Council to apply for an order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that the costs be paid in a gross sum, and direct that any such application be made in writing to my Associate within 14 days hereof, with the intention that it be determined on the papers.

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application made by plaintiff for a different order — The impecuniosity of a party is not a ground for refusing to make an order for costs against that party — The existence of parallel proceedings by the same parties in a different forum do not bear on the costs order made by this Court — No relationship between pre-proceedings offers and the defendant’s success in these proceedings — Plaintiff’s entitlement to receive advice pro bono provides no reason to displace the general rule — No relevant disproportionality

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Civil Procedure Regulation 2017 (NSW), cl 12

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

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

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Sassoon v Rose [2013] NSWCA 220

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 16 June 2021, I published my decision in Dubow v Mid-Western Regional Council [2021] NSWSC 699 (the principal judgment), which included an order that the further amended summons be dismissed. I ordered Yolande Dubow (the plaintiff) to pay the costs of the defendant, the Mid-Western Regional Council (the Council), unless an application for a different order was made. The plaintiff applied, within the time specified, for a different order. Although it is plain from the plaintiff’s submissions that she opposes an order that she pay the Council’s costs of the proceedings, it is not clear what order she seeks. The Council contended that costs ought follow the event.

Consideration

The matters raised by the plaintiff to displace the general rule

2. It is not necessary to repeat the facts since they are set out in the principal judgment. The general rule is that costs follow the event (Uniform Civil Procedure Rules 2005 (NSW), r 42.1). It is convenient to address the following matters raised by the plaintiff as to why the general rule ought be displaced:

1. the plaintiff is impecunious and the Council is well-resourced by public funds;

2. there have been other proceedings between the parties in respect of which no costs order has been made;

3. the plaintiff made an offer to the Council to resolve their disputes which was not accepted;

4. the plaintiff has filed a notice of intention to appeal;

5. the plaintiff ought not be ordered to pay the Council’s costs as she was the recipient of a grant of pro bono legal representation; and

6. the costs were disproportionate.

3. I propose to address each of these matters in turn.

The relative financial means of the parties

4. The plaintiff submitted that she is the recipient of social security benefits, the alpacas that were impounded and sold were her principal assets, and she has limited residual assets. She contended that because she is impecunious, she ought not be ordered to pay the Council’s costs. She also relied on the circumstance that the Council is a public authority and can be taken to have ready access to legal advice.

5. The impecuniosity of one party is not a ground for refusing to make an order for costs against that party: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing). Nor is it relevant that the Council is a public authority: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [28] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ), approving Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [92] (McHugh J).

Other proceedings between the parties in which costs orders have not been made

6. The plaintiff contended that “costs were doubled by the claims made in the New South Wales Civil and Administrative Tribunal [NCAT]” and that “many of the processes were duplicated from [NCAT] to the Supreme Court proceedings.” The Council confirmed that it did not seek its costs in the NCAT proceedings as part of its application that the plaintiff pay its costs of these proceedings. There is a distinction between proceedings in administrative tribunals such as NCAT, which are not generally costs jurisdictions, and proceedings in this Court, where costs orders are usually made. I do not regard the existence of parallel proceedings by the same parties in a different forum as bearing on the costs order which ought be made by this Court.

The plaintiff’s offer to resolve her dispute with the Council

7. The plaintiff relied on an offer she made to the Council in July 2019 to pay $4,400 from her superannuation account in return for the first seven alpacas which had been impounded. Further, she alleged that she had offered “three dead chickens and a goose to Mr Johnson [the impounding officer]”. Both of these offers were made prior to the commencement of these proceedings. Further, they constituted attempts by the plaintiff to regain possession of her alpacas after they had been impounded. However, these proceedings comprised challenges to the legality of the Council’s conduct and depended on questions of statutory construction. Thus, there is no particular relationship between pre-proceedings offers made by the plaintiff to the Council and the Council’s success in persuading me that the further amended summons ought be dismissed. I do not regard either of these offers as comprising a basis for displacing the general rule.

The prospect that the plaintiff will appeal against the orders made

8. The plaintiff annexed to her submissions a copy of her notice of intention to appeal to the Court of Appeal against my orders. Her intention to appeal is irrelevant to the question of the costs of the proceedings before me. If the plaintiff appeals and succeeds in overturning my orders, the Court of Appeal has power to set aside the costs orders of the proceedings at first instance and make an order for the costs of those proceedings.

The relevance of the order made that the plaintiff be granted pro bono representation

9. The plaintiff submitted that an order was made for the grant of pro bono representation by Walton J on 7 July 2020 and that, accordingly, she ought not be obliged to pay the Council’s costs of the proceedings. On 7 July 2020 Walton J ordered that the plaintiff be referred to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance in the form of legal advice only.

10. I understand (as a result of the Council’s submissions) the plaintiff’s submission to be based on cl 12 of the Civil Procedure Regulation 2017 (NSW), which provides:

“12   Postponement of fees for pro bono parties

(1)     The taking of a fee in respect of the business of the court in relation to proceedings involving a pro bono party is, if the fee is payable by the party, to be postponed until judgment has been given in the proceedings.

(2)     The fee is not to be taken at all, or if taken must be remitted, if—

(a)     judgment is against the pro bono party, or

(b)     judgment is in favour of the pro bono party, but—

(i)     damages are not awarded (or only nominal damages are awarded) in his or her favour, and

(ii)     costs are not awarded in his or her favour.

(3)     In this clause, pro bono party means a party to proceedings who is being represented under a pro bono scheme administered by the New South Wales Bar Association, the Law Society of New South Wales or the court.”

11. The first point to note is that the word “fee” includes filing fees or hearing fees, but does not extend to professional costs. Secondly, the plaintiff was not “represented” under a pro bono scheme. At best, she was entitled to receive advice pro bono from a practitioner pursuant to a scheme administered by the New South Wales Bar Association. She has represented herself throughout the proceedings. Thus, cl 12 has no application to the present case and does not provide a reason to depart from the general rule.

The alleged disproportionality between the costs of the proceedings and the amounts in issue

12. The question of disproportionality is not of particular relevance in proceedings for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). What was at issue in the proceedings was the legality of the Council’s decisions and actions by reference to the applicable legislation. In this context, the value of the plaintiff’s alpacas, or what it cost to feed and house them between the times of their impounding and their eventual sale is not to the point. The plaintiff’s substantive claim was for relief in the nature of prerogative relief. She chose to bring the proceedings. She has failed to establish a claim for any relief. In these circumstances, I am not persuaded that there is any relevant disproportionality which would disentitle the Council to its costs of the proceedings.

Conclusion

13. I am not persuaded that any of the matters raised by the plaintiff ought result in the displacement of the general rule in UCPR, r 42.1 that costs ought follow the event.

Whether gross sum costs order ought be made

14. One of the plaintiff’s objections to a costs order being made against her is that the assessment of costs and further enforcement proceedings will “wast[e] further public monies” and that the Council’s victory will be “pyrrhic”. While these matters do not provide a proper basis for a costs order not being made, they may warrant an application for an order that the costs be paid in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). If the Council wishes to apply for such an order, it may apply to my Associate for that purpose.

Orders

15. For the reasons given above, I make the following orders:

1. Confirm order (3) made on 16 June 2021 that the plaintiff pay the defendant’s costs of the proceedings and order that such costs include the costs of the application for costs.

2. Grant liberty to the Council to apply for an order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that the costs be paid in a gross sum, and direct that any such application be made in writing to my Associate within 14 days hereof, with the intention that it be determined on the papers.

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Decision last updated: 25 June 2021