Ghosh v Miller (No 4)

[2016] NSWSC 1710

Supreme Court

New South Wales

Medium Neutral Citation:	Ghosh v Miller (No 4) [2016] NSWSC 1710
Hearing dates:	16 November 2016
Date of orders:	05 December 2016
Decision date:	05 December 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Dr Gosh to pay Mr Miller’s costs in the sum of $5,000.
Catchwords:	PROCEDURE – notice of motion – gross costs order sought – order made
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 Ghosh v Miller [2016] NSWSC 430 Ghosh v Miller (No 3) [2016] NSWSC 1568 Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811
Category:	Procedural and other rulings
Parties:	Ratna Ghosh (Plaintiff) Rodney Miller (Defendant)
Representation:	Counsel: Mr M Maconachie (Defendant)   Solicitors: Dr Ghosh, in person (Plaintiff) Higgins & Dix (Defendant)
File Number(s):	2014/333115
Publication restriction:	None

Judgment

1. In Ghosh v Miller (No 3) [2016] NSWSC 1568, given on 7 November 2016, I dismissed a motion by which Dr Gosh sought orders setting aside and staying judgments given after a contested hearing in these proceedings by Fullerton J on 14 April 2016, and by Fagan J in matter number 2014/00333115 on 3 August 2016, also after a contested hearing.

2. Mr Miller now seeks a gross costs order, which Dr Gosh opposes. Her case at the hearing was that Mr Miller had done nothing to deserve a lump sum cost order. While initially contending that she had not seen submissions and an affidavit, which evidence led for Mr Miller established had been served upon her, including at the email address at which she and the Court had communicated with each other, she then advanced submissions which suggested that she was well aware of the basis of his application.

3. Affidavits sworn by Mr Miller’s solicitor, Mr Maher, deposed to service of submissions and his earlier affidavit, where he explained the time, trouble and expense involved in Mr Miller’s resistance of Dr Gosh’s motion, in the circumstances explained in the November judgment. At the time that she filed her motion Dr Gosh was an undischarged bankrupt. She had never appealed either Fullerton J or Fagan J’s judgments. I concluded in the November judgment that there was no basis on which the orders Dr Gosh sought under Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), could be made, the judgments in question not having been given irregularly, illegally or against good faith.

4. By her approach to this litigation, Dr Gosh unnecessarily increased costs, both by not giving proper attention to the matter when it came into the duty judge’s list on 28 October 2016 for hearing of her motion. That day, Mr Miller ensured that he was represented, notwithstanding the parties’ mistaken understanding that the motion would be dealt with by Rothman J that morning, but Dr Ghosh did not. At the adjourned hearing she advanced serious allegations against Mr Miller and his legal representatives, which had no evidentiary support. Nor did her claims that Fullerton J and Fagan J’s judgments had been given irregularly, illegally or against good faith.

5. Dr Gosh’s approach was plainly inconsistent with the obligations imposed on all parties by s 56(3) of the Civil Procedure Act2005 (NSW), to assist the Court to further the overriding purpose specified in s 56(1), namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It also unnecessarily increased costs.

6. I am well satisfied that the circumstances are such that the Court’s undoubted power under s 98 of the Civil Procedure Act, to make a gross costs order, should be exercised in this case.

7. The history of the proceedings and Dr Gosh’s conduct of them make it abundantly clear that the usual order under the Uniform Civil Procedure Rules, that costs follow the event, which would be an order that Dr Gosh pay Mr Miller’s costs, as agreed or assessed, will, in reality, lead to further undue difficulty, delay and frustration, given Dr Gosh’s approach to the proceedings and her obligations under the Civil Procedure Act.

8. The entire proceedings arise over the assessment of a costs order involving something over $5,000. Dr Gosh has unsuccessfully pursued assessment of those costs, review of the assessment, proceedings in the Local Court and then proceedings in this Court, before filing the motion dealt with in the November judgment, at a time when she was a bankrupt. That application was then pursued in the way I have described in the November judgment and this judgment.

9. Mr Miller was not only entitled to resist Dr Gosh’s motion as he did, he succeeded. That his legal costs had approached $6,000, even before the costs hearing, is not surprising, given what Dr Gosh’s approach necessitated.

10. Dr Gosh did not accept any of this, still contending that Mr Miller was legally aided; that he had not incurred the costs claimed; curiously, that they would be contrary to his Centrelink disability pension; that his legal representatives were not entitled to charge him for their time, as they had; that costs incurred in the Local Court proceedings were the fault of the Local Court; that the conclusions of fact to which Fagan J came were wrong, for reasons which Dr Gosh explained; and that Mr Miller and his legal representatives had been dishonest in ways that Dr Gosh described.

11. In the result Dr Gosh said she would, however, agree to an order being made against her for $1,000. The order pressed for Mr Miller was for $5,000.

12. As Slattery J explained in Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811 at [8], the purpose of the power granted by s 98(4)(c) Civil Procedure Act is to award a specified gross sum instead of assessed costs, in order to avoid the expense, delay and aggravation which may arise out of the assessment process. Such orders will be made where assessment will disadvantage the successful party; where the unsuccessful party’s conduct has unnecessarily contributed to the costs of the proceedings; and where further assessment is likely to be unduly protracted and add to costs unnecessarily.

13. I am satisfied that in the circumstances I have discussed, this is such a case. I am also satisfied that on the evidence, costs can be assessed fairly as between the parties.

14. The costs Mr Miller has incurred must be assessed in the broad brush way discussed in Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCA 1; [1999] FLR 673 at 5. There is evidence not only as to the costs agreements Mr Miller entered with his legal representatives, but also the rates he has been charged, the work performed and the tax invoices issued, including as to disbursements incurred.

15. In the result, I have concluded that a fair and just sum to award Mr Miller, taking into account the contingencies relevant on a costs assessment, is the $5,000 which he finally pressed. That pays proper regard both to the contingencies involved in a formal assessment process and Mr Miller’s concession, but for which a higher sum may well have been awarded against Dr Gosh in all of the circumstances I have discussed.

Order

16. For those reasons, I order that Dr Gosh now pay Mr Miller’s costs in the sum of $5,000.

**********

Decision last updated: 05 December 2016