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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dubow v Mid-Western Regional Council

Details

AGLC: Dubow v Mid-Western Regional Council [2021] NSWSC 767
Case: [2021] NSWSC 767
Decision Date: 25 June 2021

CaseChat Overview and Summary

The case of Dubow v Mid-Western Regional Council involved the plaintiff seeking an order for costs from the defendant, who had been found liable in the proceedings. The dispute centred on whether the defendant should bear the costs of the litigation, as per the general rule in Australian law. The matter was heard in the Queensland Land Court. The plaintiff, Dubow, argued for an order that deviated from the usual rule that costs follow the event, citing his financial difficulties and the defendant's success in the proceedings. The defendant, Mid-Western Regional Council, opposed the application, contending that the plaintiff's financial status and parallel proceedings in another forum were irrelevant to the costs order in this Court.

The central legal issues revolved around whether the plaintiff's financial position and the existence of parallel proceedings in another jurisdiction could influence the general rule that costs follow the event. The court had to determine if the pre-proceedings offers made by the defendant related to the outcome of these proceedings and if the plaintiff's access to pro bono advice should impact the costs order. Additionally, the court needed to assess whether there was any disproportionality in the order for costs that would warrant a deviation from the general rule.

In its reasoning, the court emphasised that the general principle that costs follow the event was not to be lightly departed from. The court found that the plaintiff's financial difficulties were not a sufficient ground for deviating from this rule. The existence of parallel proceedings in another forum did not impact the costs order made by this Court. The court also noted that there was no direct relationship between the pre-proceedings offers made by the defendant and the outcome of these proceedings. Furthermore, the fact that the plaintiff received legal advice on a pro bono basis did not provide a basis to deviate from the general rule. The court concluded that there was no relevant disproportionality that would justify a different order for costs.

The court ultimately dismissed the plaintiff's application for a different order for costs, confirming that costs should follow the event. The defendant, Mid-Western Regional Council, was not required to bear the plaintiff's costs. The court's decision upheld the general principle that costs should follow the event, unless there were exceptional circumstances that warranted a departure from this rule.

Orders