Ghosh v Miller (No. 4)

[2015] NSWDC 206

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ghosh v Miller (No. 4) [2015] NSWDC 206
Hearing dates:	17 September 2015
Date of orders:	22 September 2015
Decision date:	22 September 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application for gross sum costs order pursuant s 98 Civil Procedure Act 2005 (NSW) dismissed. (2) Plaintiff pay defendants’ costs of and concerning this motion. (3) Any further application for costs for each of the 10 occasions identified by the plaintiff in her notice of motion is to be left to the trial judge. (4) Liberty to apply in relation to costs. (5) Exhibits retained for 28 days.
Catchwords:	COSTS – application by litigant in person for a gross sum costs order for $120,496.00 for 10 interlocutory directions hearings – only one costs order previously made in favour of the litigant in person – prior attempt by the litigant in person to issue garnishee orders for $35,000 in relation to this costs order rejected by registry - whether any litigant in person had an entitlement to costs on each of these 10 occasions and, if so, whether those costs should be paid on an indemnity basis, assessable forthwith and the subject of a gross sum costs order – circumstances in which gross sum costs orders may be made – proceedings not yet listed for hearing – litigant in person responsible for delays and inadequate pleadings resulting in costs orders against her - quantum of costs claimable by litigants in person – costs information provided by litigant in person insufficient and inaccurate – application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62 and 98 Local Court Act 2007 (NSW), s 33 Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr r 10.20, 12.7 and 35.7B
Cases Cited:	Cachia v Hanes (1994) 179 CLR 403 Ghosh v Google Australia Pty Ltd [2013] NSWDC 146 Ghosh v Miller (No 2) [2013] NSWDC 194 Ghosh v Miller (No 2) [2015] NSWSC 1287 Ghosh v Miller (No 3) [2015] NSWDC 133 H v H (2006) Fam C A 167 Hamod v State of New South Wales [2011] NSWCA 375 Lorenzato v Lorenzato (No 2) [2011] NSWSC 790 Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 Merrin v Commissioner of Police; Merrin and Anor v Commissioner of Police [2011] QCA 181 Munn v Tunks (Supreme Court of New South Wales, Nicholas J, 6 May 2013, unreported) Munn v Tunks [2013] NSWSC 1263 National Australia Bank v Rusu [1999] NSWSC 539 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 Preston v Commissioner for Fair Trading [2011] NSWCA 40 Rapisarda v Colladon [2014] EWFC 35 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11 Winter v Fleeton [2002] WASCA 73 Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146
Texts Cited:	Dal Pont, “Law of Costs”, 3rd ed., LexisNexis at [7.31] – [7.36] District Court Civil Practice Note 6
Category:	Procedural and other rulings
Parties:	Plaintiff: Dr Ratna Ghosh First Defendant: Rodney Miller Second Defendant: Everingham Miller Third Defendant: Marilyn Bee Fourth Defendant: John Bee Fifth Defendant: Michael Ryan Sixth Defendant: Adam Josef Schuch Seventh Defendant: Karen Schuch
Representation:	Counsel: Plaintiff: In person First and Second Defendants: Mr M Maconachie Third to Seventh Defendants: Ms T Stack (solicitor)   Solicitors: Plaintiff: In person First and Second Defendants: Higgins & Dix Third to Seventh Defendants: Shore Stack Lawyers
File Number(s):	2013/238215
Publication restriction:	None

Judgment

The plaintiff’s application

1. These are proceedings for defamation brought by the plaintiff, Dr Ghosh, against seven defendants. The matters complained of consist of adverse reviews of the Gold Coast holiday house she advertises for short-term rentals and for complaints made by local residents to the media about noisy tenants in this house: Ghosh v Google Australia Pty Ltd [2013] NSWDC 146; Ghosh v Miller (No 2) [2013] NSWDC 194; Ghosh v Miller (No 3) [2015] NSWDC 133.

2. These proceedings were commenced in the Local Court at Newcastle, and were then transferred to the District Court at Newcastle. After the striking out of proceedings against the original first defendant, Google Australia Pty Ltd ([2013] NSWDC 146), heard in the District Court of Newcastle on 16 August 2013, the proceedings were transferred to the Defamation List in the Sydney registry of this court on 1 November 2013.

3. The plaintiff brings a notice of motion (filed on 27 July 2015) seeking orders in relation to the costs for the period 16 August 2013 to 25 July 2014, when she claims there was unacceptable delay by the defendants in the conduct of this litigation.

The orders sought

4. The relief sought is identified in orders 1 and 2 of the plaintiff’s notice of motion as follows:

1. A gross sum costs order payable forthwith against all defendants pursuant to Section 98(4)(c) of the Civil Procedure Act 2005 (NSW) for “non-attendance on all dates in 2013 and the early part of 2014, on dates specified in the attached affidavit” and for “failure to conduct the defence with due despatch by UCPR r 12.7(2)”.

2. Nine dates are specified in the affidavit in support as being 16 August 2013, 10 October 2013, 1 and 29 November 2013, 14 and 28 February 2014, 21 and 28 March 2014 and 23 May 2014.

3. An additional sum gross sum costs order is sought for a tenth directions hearing, “payable forthwith against all defendants pursuant to Section 98(4)(c) of the Civil Procedure Act 2005 for misdirection by their legal counsel (Leo Tyndall) at the 25 July 2014 hearing that the matter was part heard before Judge Bozic [sic]”.

The plaintiff’s evidence

5. On 30 July 2015, Dr Ghosh was ordered to provide invoices for the sums she sought. Prior to the hearing of this application those invoices, provided in submissions, totalled $98,300. However, the two revised “invoices” which have been tendered in court (Exhibit A) now total $120,496.00.

6. I shall set out the first “tax invoice” prepared by Dr Ghosh to identify both the amounts in the first set of invoices and the additional sums claimed at the hearing:

Invoice 1

Item	Bill
1	Service by Express Post July 2013	$150
2	Personal Service to all defendants September 2013 (Includes $0.75 per km for 480 km round trip to Laurieton from Newcastle And $0.75 per km for 1600 km round trip to Surfers Paradise from Newcastle and meal stops)	$2,000 [Note: this sum is incorrect: (1600 + 480) x 0.75 = $1,560]
3	Personal Service to all defendants October 2013	$2,000
4	Personal Service to all defendants December 2013	$2,000
5	Personal Service to all defendants April 2014	$2,000
6 6A	Photocopying for repeated service (15,000 pages from July 2013 until June 2015) Hotel, food and parking costs incurred due to “repeated service”	$35,750 [Note: this sum was only $15,000 in the first set of invoices] $3,500 [Note: this claim was not included in the first set of invoices.]
7	Loss of professional income to attend Court (On 16/8/13, 10/10/13, 1/11/13, 29/11/13, 14/2/14, 28/2/14, 21/3/14, 28/3/14, 11/4/14, 23/5/14 - $2,000 per visit)	$20,000
8	Travel Expense to Attend Court (300km at $0.75 per km on 16/8/13, 10/10/13, 1/11/13, 29/11/13, 14/2/14, 28/2/14, 21/3/14, 28/3/14, 11/4/14, 23/5/14 - $225 per visit). Parking expenses on these occasions:	$2,250 $640 [Note: The parking claim was not included in the first set of invoices]
Total	The amount claimed in the first set of invoices was $45,400 which was mathematically incorrect – see point 2 above]	$70,290 [Note: This total does not take into account the $440 error in [2] above ]

7. The expenses in this invoice relate to Dr Ghosh’s claims as a litigant in person. However, Dr Ghosh has, from time to time, retained barristers to appear on her behalf. The second “tax invoice” prepared by Dr Ghosh claims both the fees for two barristers she retained on direct access and her loss of income for briefing them, as well as for attending court:.

Invoice 2

Item	Bill
1	Fees for Counsel Roger Rasmussen (To prepare, advise and attend Court on 28 February 2014, 21 March 2014, 28 March 2014 and 11 April 2014)	$27,090 [Note: This amount is less than the sum sought in the first set of invoices, which consisted of two claims of $27,500 and $11,000, totalling $38,500]
2	Loss of income while briefing Mr Rasmussen	$6,000 [Note: this sum was not claimed in the first set of invoices]
3	Loss of professional income to attend Court (For 4 versions of defence struck out 20/2/15, 23/4/15, 14/5/15, 4/6/15 - $2000 per visit)	$8,000 [Note: It is not clear if this sum is claimed in addition to, or in place of, the claim for $6,000]
4	Travel Expense to Attend Court (20/2/15, 23/4/15, 14/5/15, 4/6/15 - $225 per visit), plus parking fees of $64 on each of these occasions ($256)	$1,156 [Note: the parking gees were not claimed in the first set of invoices]
5 6	Fees for Counsel Christopher Dibb (To prepare, advise and attend Court on 25 July 2014 including disbursements) Loss of income while briefing Mr Dibb	$3,960 [Note: this amount was $5,500 in the first set of invoices] $4,000 [Note: this was not claimed in the first set of invoices]
Total	The total for the first set of invoices was $50,206. The reduction for amounts claimed in counsel’s fees is $11,410 for Mr Rasmussen and $1,040 for Mr Dibb]	$50,206 [Note: this is Dr Ghosh’s total and does not take into account the $6,000 fee in [2] above]

8. Examination of the plaintiff’s two invoices in Exhibit A and the relevant attachments (memoranda from counsel, a photocopying invoice on the plaintiff’s company letterhead and a list of motel expenses) shows:

1. Many of these disbursements (such as those claims for Mr Rasmussen’s fees, loss of professional income, parking expenses and photocopying costs which relate to the conduct of these proceedings in 2015) do not relate to the dates for which costs are claimed in the submissions but to the subsequent conduct of these, and perhaps other, court proceedings.

2. The photocopying claim for $35,750 is based on the 2015 AMA rates of $1.30 a page plus GST. Dr Ghosh claims to have photocopied 3,500 pages for each of the months of July, August, September, October and December 2013, although the only activity over this period involving the defendants (who were not parties to the Google Australia Pty Ltd summary dismissal claim) was the transfer of the proceedings from the Local Court to the District Court, due to Dr Ghosh commencing defamation proceedings inappropriately in the Local Court, and Dr Ghosh’s unsuccessful application for default judgment against them. The basis for such a vast amount of photocopying is not explained. I also note that these are not supported by an invoice from a business service provider; the photocopying was done by Dr Ghosh on her own photocopier.

3. The dates for accommodation include 4 occasions outside the range of dates for which costs are claimed (namely October 2014 – July 2015), accommodation at places unrelated to these proceedings (e.g. Grafton and Coffs Harbour) and claims which, while temporally within the range of dates claimed, do not match those dates. Where counsel was briefed, the reason for Dr Ghosh to attend court as well was unexplained.

4. No information is provided as to how Dr Ghosh’s loss of income is calculated, or why she should be entitled to charge a $2,000 fee for “personal service to all defendants” on three occasions in October and December 2013 and April 2014.

5. No explanation is provided for the increase in the proposed gross order sum from $98,300 to $120,496; there are mathematical errors and overlaps; and there is confusion arising from differences between the amounts claimed in the first and second set of invoices.

6. No attempt is made to separate out specific costs issues in relation to any of the defendants, although they are separately represented and some have been more active than others (for example, the fifth defendant played no part in this litigation until 2015).

9. Untangling what the costs claimed are, the hearings to which they apply, the basis upon which it is asserted that there is a “costs event” and the basis upon which a gross sum costs order should be made has been a difficult task due to the disorganised presentation and submissions of the plaintiff.

The defendants’ submissions

10. Counsel for the third to seventh defendants provided written submissions for this application. Ms Stack, the solicitor appearing for those parties, indicated her reliance upon them in lieu of making oral submissions. Dr Ghosh objected to this course, on the basis that she had not been provided with those submissions prior to the hearing of this argument, and did not have time to read them.

11. It is unfortunate that Dr Ghosh was not provided with these submissions before the hearing of this application, but the contents of the opening sentence of the third to seventh defendants’ submissions – namely, that there has been no costs event which justifies either the basis of, or the timing for, this application – is all that Dr Ghosh needed to read in order to understand the gravamen of the third to seventh defendants’ opposition to the orders sought.

12. Counsel for the first and second defendants did not provide written submissions. He objected to the tender of Exhibit A on the basis of a challenge to the authenticity of Mr Dibb’s account (National Australia Bank v Rusu [1999] NSWSC 539), and to the balance of Exhibit A on the basis of relevance. He joined in the third to seventh defendants’ submissions that the application should fail because there was no costs event.

13. Both Ms Stack and Mr Maconachie objected to the tender of Dr Ghosh’s affidavit on the basis that, contrary to r 35.7B Uniform Civil Procedure Rule 2005 (NSW) (“UCPR”) the affidavit had not been signed on each page by the deponent and the witness, and that no signature for the witness appeared at the end of the affidavit. Dr Ghosh told the court that the JP whose name and number was typed in this space had had a nervous breakdown following alleged harassment and/or telephone calls from one or more of the defendants’ legal representatives. Whatever the explanation may be, I propose to treat Dr Ghosh’s affidavit as being a submission only.

14. None of the parties addressed the issue as to whether, if I were to express a view as to the plaintiff’s entitlement to costs on these occasions, I should formally enter a costs order of some kind, although the exercise of analysing each costs event would have had to have resulted in some kind of order for Dr Ghosh to be entitled to the relief she seeks.

15. As these proceedings are now at the stage of administration of interrogatories, and will be able to be allocated a hearing date soon, the course I have adopted is to make no orders, and to leave the only costs order made (1 November 2013) undisturbed, on the basis that these can be issues which will abide the result of the trial.

Analysis of the plaintiff’s claim for a gross sum costs order

16. The first step is to ascertain what happened on the occasions for which these costs orders are sought. As noted above, Dr Ghosh has set out the list of dates in paragraph 2 of her affidavit, so I shall start my analysis of the “costs events” by analysing the issues before the court on each occasion. Those dates, and the proceedings before the court, are set out below.

16 August 2013

17. This was the day on which the first defendant, Google Australia Pty Ltd (“Google”), brought its application for summary dismissal of the plaintiff’s claim. Google was the only defendant represented on this occasion. I reserved my judgment on Google’s application for summary dismissal, which I handed down on 20 August 2013: Ghosh v Google Australia Pty Ltd [2013] NSWDC 146. The plaintiff was ordered to pay Google’s costs.

18. No orders were sought against any other defendants, who played no part in the application. I noted in my judgment (at [3] and [19]) that there was no evidence of service compliant with UCPR r 10.20(2)(a). This was the first of a series of occasions upon which Dr Ghosh was warned by a judge of this court that service by post of the statement of claim on defendants was insufficient to comply with the Rules.

19. The costs of this occasion were payable by Dr Ghosh because the sole issue before the court was the summary dismissal application brought by Google. It is not open to Dr Ghosh to seek a costs order from the other defendants, not only because they had not been served, but because Dr Ghosh herself was unsuccessful in the application and ordered to pay Google’s costs.

10 October 2013

20. These proceedings were listed in the Newcastle registry to hand down judgment ([2013] NSWDC 194) and to transfer the proceedings to Sydney in compliance with the Defamation List’s current Practice Note. I made the following orders:

1. The defendants called outside Newcastle Court 1 and Court 3 three times at 10:20am – no appearance.

2. Grant leave to the plaintiff to file the Notice of Motion in the Registry today and pay the relevant filing fee.

3. Pursuant to s 140(2) Civil Procedure Act 2005 (NSW), transfer Local Court matter 2013/76771 to the New South Wales District Court, forming part of District Court matter 2013/238215, by reason of the Local Court having no jurisdiction in defamation proceedings.

4. Dismiss the plaintiff’s application for default judgment.

5. Matter transferred to the Defamation List in Sydney on Friday 1 November 2013.

21. The main problem was the need for transfer of the proceedings against the remaining defendants from the Local Court in Newcastle to the District Court in Sydney. As Dr Ghosh commenced defamation proceedings in a court which has no jurisdiction to hear them (s 33 Local Court Act 2007 (NSW)), any costs orders made would have been payable by her. Costs orders had in fact been made against Dr Ghosh in the Local Court. She was, additionally, a litigant in person, and would have needed to identify with care any disbursements she was seeking to claim.

22. Dr Ghosh also applied for default judgment against the remaining defendants. The reasons for refusal of her application for default judgment are set out in Ghosh v Miller & Ors (No. 2) [2013] NSWDC 194 at [4] – [8]. As her application was unsuccessful, she should not be entitled to any “costs” or disbursements.

1 November 2013

23. This was the first return date of Dr Ghosh’s Local Court proceedings after they were transferred to this court. The proceedings were placed in the Defamation List conducted by Elkaim SC DCJ. Some application must have been made for orders against the defendants by Dr Ghosh, as Elkaim SC DCJ noted that “the matter did not proceed because service on the Queensland defendants (namely the third to seventh defendants) was ineffective”, by reason of the provisions of the Service and Execution of Process Act 1992 (Cth).

24. Although Elkaim SC DCJ noted that four of the defendants had not been correctly served, he nevertheless ordered (Order 6) that “the defendants are to pay the plaintiff’s costs of today”. Dr Ghosh submits that she is therefore entitled to “costs” for this occasion against all defendants.

25. This is the only costs order in favour of the Dr Ghosh on any of the occasions the subject of this application. There is no judgment, and it is unclear how she could be entitled to costs if Elkaim SC DCJ considered the matter could not proceed because of her default in failing to comply with the rules for service for the third to seventh defendants.

26. Even if Dr Ghosh were entitled to costs, and those costs were to be assessable forthwith, those costs would need to be defined as the disbursements available to a litigant in person as well as being relevant to the 1 November 2013 directions hearing, which has not been done.

27. At this stage, Dr Ghosh had not briefed counsel and, as I have set out in more detail below, all she would be entitled to claim would be expenses. However, Dr Ghosh’s claims of travelling expenses and loss of income are claims which courts have held are not open to litigants in person: Cachia v Hanes (1994) 179 CLR 403.

23. As the 1 November 2013 costs order is the only order ever made in Dr Ghosh’s favour, I shall take this opportunity to set out what a costs order of this kind means where the party in whose favour such an order has been made is a litigant in person.

Costs of lay litigants

29. A successful lay litigant can recover only out of pocket expenses, but the parameters of expenses which can be claimed are limited. In Cachia v Haines (1994) 179 CLR 403 the High Court confirmed the findings of the judgment under appeal and held that compensation for the loss of time spent in the preparation and conduct of the case and for associated out of pockets (namely travelling expenses) should not be allowed, and noting that the right to be self-represented was never intended as a means by which litigants in person could claim remuneration. While these principles have been challenged (Merrin v Commissioner of Police; Merrin and Anor v Commissioner of Police [2011] QCA 181; see also Dal Pont, “Law of Costs”, 3rd ed., LexisNexis at [7.31] – [7.36]), they remain accepted law. Nor can claims be made for meals (Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14] or parking (H v H (2006) Fam C A 167 at [9]): see Preston v Commissioner for Fair Trading [2011] NSWCA 40 at [182] – [185].

30. Costs of serving documents on six occasions (a total of $50) were permitted by in Winter v Fleeton [2002] WASCA 73. The basis upon which this small sum was allowed is not specified. The Court otherwise held that the self-represented litigant’s claims for travelling expenses, parking costs, loss of remuneration and time spent in court were not claimable.

31. As Elkaim SC DCJ was satisfied that Dr Ghosh had not properly served the third to seventh defendant, it is hard to see how Dr Ghosh would be entitled to any costs of service when she had failed to comply with the Service and Execution of Process Act.

32. Dr Ghosh’s claim for photocopying expenses, if attributable to this costs order, would fail for another reason. A litigant in person may only claim expenses which are “money which he has actually had to pay out to other people” (Winter v Fleeton at [18], citing Cachia v Haines). Dr Ghosh stated that she carried out the photocopying in her office, and that she has charged a commercial rate for it. Creating a receipt on her own letterhead does not amount to a claim capable of disbursement, and I do not accept that 10,500 pages needed to be photocopied for this directions hearing.

33. I am accordingly satisfied that, although there is a costs order, there are no disbursements capable of being claimed. However, that is only the first hurdle that Dr Ghosh must clear. She has not been able to satisfy me that there is any basis for asserting that the costs order should be assessable forthwith, or on an indemnity basis, let alone that this order should be assessed as part of a gross sum costs order.

34. Dr Ghosh is been well aware of these costs rules, because she did, in fact, bring an application for a garnishee order in this court in relation to these costs, as an examination of this application reveals.

Dr Ghosh seeks a Garnishee Order for the 1 November 2013 costs

35. On 2 December 2013 Dr Ghosh swore an affidavit seeking garnishee orders against each of the seven defendants for $5,000. In her notices of motion for Garnishee Order, Dr Ghosh described herself as the “judgment creditor”, the date of the judgment to be enforced as “1 November 2013”, and each of the defendants as “judgment debtor” and “a person liable to pay the judgment”. The judgment sum for each defendant was $5,000 (a total of $35,000). She also stated in her affidavit that the judgment for $5,000 for each defendant was “not stayed by an order of the court” (paragraph 8).

36. This application, and the affidavits in support, are contained in the file, and the Registrar’s orders of 3 December 2013 refusing the application are accessible on JusticeLink. Those orders are as follows:

“Notice of motion for Garnishee Order for Marilyn Bee, John Bee, Michael Ryan, Karen Schuch is refused.

The Costs have not been quantified as required by UCPR 42.2 by Assessing.

Interlocutory Costs do not become payable until the conclusion of the proceedings UCPR 42.7.

The proposed Garnishee is outside New South Wales. No jurisdiction.

Social Security payments are absolutely inalienable and so cannot be attached. s60 Social Security (Administration) Act 1999 Cwlth.”

37. Similar orders were made in relation to the application for a garnishee order for the sum of $5,000 against each of the first and second defendants, Mr and Mrs Miller.

38. The $35,000 sought in this garnishee application is inconsistent with the sums Dr Ghosh now claims from this court. This does not augur well for the accuracy of her costs estimates, a requirement which is essential for any application for a gross sum costs order.

39. The next “costs event” was the directions hearing of 29 November 2013.

29 November 2013

40. The plaintiff filed a Notice of Motion on 18 November 2013 which Elkaim SC DCJ ordered should be served on the defendants, who did not appear. The Notice of Motion was stood over to 28 February 2014 and costs were reserved.

41. As the plaintiff had not served the defendants in accordance with the Rules and the proceedings had to be adjourned, it is hard to see how the plaintiff can bring any claim for costs.

14 February 2014

42. The plaintiff filed a further Notice of Motion on 11 February 2014 which came before Levy SC DCJ. His Honour made an order staying the Local Court costs order against the plaintiff, Dr Ghosh, in the Local Court and reserved the issue of costs. Once again, Dr Ghosh was acting for herself.

43. There is no evidence that the defendants were given prior notice of this Notice of Motion or of the directions hearing before Levy SC DCJ. The plaintiff appears to have filed her notice of motion without any prior warning to them. There is no basis, in those circumstances, for any reimbursement of costs to Dr Ghosh. Motions are not filed in the Defamation List, and even the filing fee (which I note Dr Ghosh has not claimed in any event) would not be recoverable.

28 February 2014

44. This was the return date Elkaim SC DCJ had allocated for the plaintiff’s Notice of Motion filed on 18 November 2013. On this occasion, for the first time, Mr Rasmussen appeared for the plaintiff. The person noted by Bozic SC DCJ as appearing for the “defendant [sic]” is Mrs Barnett but, given the contents of his Honour’s short ex tempore reasons, where the absence of the defendants is noted, this is agreed by the parties before me to be an error.

45. Orders extending the stay of costs orders against the plaintiff, Dr Ghosh, in the Local Court at Newcastle were continued until 21 March 2014. As Dr Ghosh was seeking a stay of orders made against her, she would need to establish that there was some compelling reason why the defendants, and not Dr Ghosh herself, were liable to pay costs. That has not been done and I am satisfied that the plaintiff would not be entitled to any costs order.

21 March 2014

46. Mr Rasmussen appeared for Dr Ghosh on this occasion, and Mr Busby appeared for the first and second defendants. The plaintiff’s latest application for default judgment against the remaining defendants was stood over for hearing to 28 March 2014. This application was ultimately unsuccessful, and there would be no basis for a costs order in Dr Ghosh’s favour in those circumstances.

28 March 2014

47. This was the hearing date allocated by Bozic SC DCJ for Dr Ghosh’s applications to stay the Local Court costs order and for default judgment. The plaintiff was represented by Mr Rasmussen and the first and second defendants by Mr Busby. Why the application did not proceed was unexplained and Bozic SC DCJ made the following order:

“All outstanding motions and applications have been stood over to 11.4.14.”

11 April 2014

48. This was the first time that these proceedings came before me in the Defamation List. I noted that Higgins & Dix appeared for the first and second defendants, Mr Busby for the remaining defendants, and Mr Fozzard for the plaintiff.

49. I specially fixed the outstanding applications for hearing before the Defamation List Judge on 23 May 2014 and noted that the hearing must proceed on that date. The costs of this directions hearing would therefore fall within the parameters of any orders made on 23 May 2014.

23 May 2014

50. These proceedings were listed for argument before Bozic SC DCJ, who had case managed the proceedings on a series of occasions from February 2014. Mr Dibb appeared for the plaintiff and Mr Busby for all defendants except the third and fourth defendants.

51. It is clear some form of argument took place; short oral reasons were given for directing the plaintiff to file and serve an amended statement of claim and the matter listed for directions on 27 June 2014. Those reasons are not available. However, if the plaintiff was ordered to file an amended pleading, then the general rule would be that she must pay the costs thrown away by reason of the amendment. This would mean that there would be no entitlement to costs for 11 April and 23 May 2014.

52. The orders and notations made by Bozic SC DCJ were as follows:

1. The plaintiff has leave to file and serve a further amended statement of claim on each of the defendants by 20.6.14.

2. Matter is listed for directions on 27.6.14.

3. Costs of today are reserved.

Noted: that it is a matter for plaintiff to address service of D3 and D4 and to seek further orders if contact cannot be made with the defendants and an appearance entered.

Consideration will need to be given by the plaintiff on whether she relies on what is said to be the original or amended statement of claim as ordered by Judge Gibson or whether in relation to further amended statement of claim and order for substituted service needs to be made. Mr Dibb will attend to the filing of the notice of appearance.

53. It is clear that Bozic SC DCJ, like Elkaim SC DCJ and Levy SC DCJ, was concerned about the plaintiff’s continued inability to address issues of service.

27 June 2014

54. The plaintiff sought orders for substituted service and the first and second defendants sought orders for summary dismissal. These were listed for hearing on 25 July 2014. The orders made by me on this occasion were as follows:

1. The plaintiff’s notice of motion for substituted service on the third and fourth defendants is to be filed in court and served upon the solicitors for all parties (or, where parties are self-represented, those parties) in 14 days. Such notice of motion is to be supported by an affidavit from the solicitor with conduct of the matter setting out the attempts made to serve to date in chronological order.

2. The plaintiff is to file and serve a further amended statement of claim underlining all amendments to the previous statement of claim, attaching a copy of that previous statement of claim, in 14 days. Under no circumstances is that document to be served by email.

3. The plaintiff’s application for substituted service is stood over for argument to Friday 25 July 2014 at 10:00am before Gibson DCJ.

4. The first and second defendants’ application for summary dismissal of the claims against them is stood over to Friday 25 July 2014 at 10:00am before Gibson DCJ.

5. The first and second defendants are to file and serve any chronology of events and/or affidavit in support in 14 days.

6. Costs reserved.

55. The plaintiff’s claim for the costs of the adjourned hearing on 25 July 2014 is set out in more detail below.

Is there a “costs event” or costs order capable of being assessed forthwith?

56. Analysis of the orders made on each occasion nominated by Dr Ghosh shows that either no costs order was made, or that any costs (including reserved costs) would have been payable by Dr Ghosh.

57. There one costs order in Dr Ghosh’s favour. This is the order made by Elkaim SC DCJ on 1 November 2013. It is an order which hardly qualifies for the additional benefit of being assessed forthwith. It appears to conflict with his Honour’s earlier orders, as well as being an order which needs to be read in light of those costs being the costs of a litigant in person.

58. This brings me to the second order sought by Dr Ghosh, namely an indemnity costs orders for defendants’ conduct of the hearing of applications on 25 July 2014. This requires me to set out what happened on that occasion.

The 25 July hearing

59. When the parties’ respective applications came before me for hearing on 25 July 2014, counsel for the defendants told me the application by the plaintiff for substituted service was now resolved, but that he thought his clients’ application (which had previously been listed four times before Bozic SC DCJ) was in fact still part heard before Bozic SC DCJ. Looking at the previous orders his Honour had made on previous occasions, I considered this to be likely, and made the following orders:

1. Direct the plaintiff’s solicitor, Mr Carter, to provide a certificate under the Legal Profession Act for the second further amended statement of claim within 7 days.

2. Note that the Court has provided the defendants’ legal representative with a sealed copy of the latest statement of claim and that Mr Dibb will, if requested, provide additional copies of the matters complained of.

3. Dismiss the plaintiff’s notice of motion of 21/7/14, noting that the issue of service is now resolved. Note affidavit of Mr Busby has been filed in court.

4. The defendants advise that these proceedings were part heard before Judge Bozic on 23/5/14 before these proceedings were transferred to me. I note that Mr Dibb does not agree. In the circumstances, I grant the parties liberty to approach Judge Bozic to complete hearing of the defendants’ application for summary judgment.

5. Costs reserved.

60. Dr Ghosh submits that this application was “an attempt to go “judge shopping for a better outcome by pretending the case and strike out motion were part-heard before Judge Bozic”, and that this was “an Abuse of Process” (paragraph 7, affidavit of Dr Ghosh of 27 July 2015).

61. These proceedings were listed before Bozic SC DCJ on four occasions between February and May 2014, when his Honour made orders both for the extension of the costs order against Dr Ghosh in the Local Court and standing over the first and second defendants’ application for summary judgment. In fact his Honour was not part-heard in this application, and the file was later returned.

62. This repeated pattern of adjournments (even where orders had been made that the arguments listed for hearing must take place), inadequate pleadings and complaints by the defendants that they were not served with documents resulted in confusion and uncertainty for which Dr Ghosh must accept a large share of the blame. It was not unreasonable of the defendants’ legal representative, confronted with a muddle of motions and repeated adjournments, to consider that the proceedings were still part-heard before another judge. Dr Ghosh’s complaints of abuse of process are without basis.

63. Dr Ghosh’s motions were doomed in any event. When the proceedings were returned to me for this hearing, I made two costs orders against Dr Ghosh on 10 October 2014 (on an indemnity basis) and 31 October 2014 (on the ordinary basis). The costs of these earlier occasions would therefore be payable by Dr Ghosh, and not by the defendants.

Other costs sought

64. Although Dr Ghosh has nominated specific dates in prayers 1 and 2 in the notice of motion, approximately half of the sum she is claiming relates to costs incurred on other occasions. The documentation supplied by Dr Ghosh to the court refers to other claims, including:

1. “Photocopying for repeated service” between July 2013 and July 2015 ($15,000);

2. Loss of professional income ($20,000) in attending court on dates other than those nominated (this includes occasions when she was represented);

3. Travelling expenses;

4. Memoranda of counsel’s fees for events unconnected to the dates nominated by the plaintiff, including counsel’s fees for advising her in relation to the defences filed in 2015, attending court in 2015 and other disbursements raised before me when these proceedings were listed for hearing.

65. It is not possible for me to unscramble the omelette and determine which costs are attributable to which day in court, and it is entirely unreasonable to include costs for work done for the period after 25 July 2015, particularly since the proceedings have (apart from the need to file an amended defence) been conducted with despatch by the defendants over this period. Interrogatories have been administered and the case should be ready on the next occasion to take a hearing date. These claims are irrelevant to the application and should be rejected.

Dr Ghosh’s entitlement to a gross sum costs order

66. As is noted above, the defendants’ primary position is that there are no relevant costs orders in the first place, let alone circumstances warranting the payment of costs forthwith. That unassailable argument has not been dealt with by Dr Ghosh beyond generalised complaints of dishonesty and delay.

67. Additionally, litigants in person may not claim most of the items sought, and the manner of presentation is so muddled that the actual amounts for the occasions in question are impossible to work out.

68. Dr Ghosh’s claim for a gross sum costs order is, at this stage of the litigation and in the absence of appropriate costs orders, wholly misconceived, and must fail in limine. As she has failed to demonstrate any entitlement to costs orders of the kind necessary for a gross sum costs order, the relevant principles for the making of such an order simply do not arise.

69. In the event that I have erred in this finding, I set out brief reasons identifying the basis upon which I would not have been prepared to make the gross sum costs order sought. These reasons include an explanation as to why I would not be prepared to make orders for costs of these occasions payable on an indemnity basis, or assessable forthwith, in any event.

The relevant legislation and principles

70. Section 98(4) Civil Procedure Act2005 (NSW) authorises the Court to make an order to the effect that the party to whom costs are to be paid is to be entitled to “a specified gross sum instead of assessed costs”. However, s 98(4) is intended as an alternative to assessed costs, in circumstances where a costs order is or has been made: Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. It is not intended to function as a substitute for assessment.

71. The circumstances in which a gross sum costs order will be made are summarised in Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820]:

“[813]I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]–[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.

[814]See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie’s Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 to date, “Civil Procedure Act”, at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd; Lorenzato v Lorenzato (No 2) [2011] NSWSC 790 per Black J.

[815]In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J noted that the specified gross sum costs procedure was particularly useful in complex cases, that the power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is fair, logical and reasonable.

[816]The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act, ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie’s Uniform Civil Procedure NSW at [s 98.45].

[817]The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120;Charlick Trading Pty Ltd v Australian National Railways Commission; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]–[195]; Hadid v Lenfest Communications Inc [2000] FCA 628.

[818]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: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie’s Uniform Civil Procedure NSW at [s 98.60]).

[819]The assessment of any lump sum to be awarded must represent a review of the successful party’s costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering[2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673.

[820]The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2); Leary v Leary; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd(FCA, 4 March 1998, unreported). The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164–165; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743. This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164–165.”

72. Dr Ghosh’s Notice of Motion and application have failed to apply these principles, or to bring the application in accordance with the relevant provisions and rules.

73. Ms Stack points out that Dr Ghosh erroneously seeks the gross sum costs order under UCPR r 12.7. As Ms Stack notes, that rule has no application in the present case. UCPR r 12.7 is part of the “just, quick and cheap” provisions related to ss 56 – 62 Civil Procedure Act 2005 (NSW). Where a party is not prosecuting proceedings with due dispatch, a court may make orders, including costs orders, but the circumstances in which on order would be made for a gross sum costs order for interlocutory costs could not arise unless there was already an order that those costs should be, contrary to the usual rule, assessable forthwith.

74. While the court does have the power to make orders for the payment of a specified amount “on account of” costs, such orders are only made after a hearing and in circumstances of egregious conduct by the party involved. Ms Stack points out that no such order should be made in the absence of evidence as to what those costs are, or against a person who is a party in the proceedings without that person having been heard: Zisti v Bartter Enterprises Pty Ltd [2013] NSWCA 146 at [53] – [76].

75. A further impediment to Dr Ghosh’s application is the timing. Such orders are only made where costs orders have been (or are about to be) made, where the proceedings have been completed, or are otherwise at a stage where the making of such an order will not stultify the conduct of litigation by the party against whom such an order is made: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11; Lorenzato v Lorenzato (No 2) [2011] NSWSC 790. No basis for these costs, if awarded, being assessable forthwith has been identified beyond a generalised smear of the conduct of the defendants and their representatives.

76. Finally, even where a costs order has been made, and the court is satisfied that the costs should be both assessed forthwith, that is still not a sufficient basis for the making of an order for indemnity costs, let alone a gross sum costs order. The circumstances in which such orders will be made will depend upon the applicant for orders being able to satisfy the court, not only that such an order is appropriate, but that the court can have confidence in the accuracy of the costs the subject of the application: Tim Barr Pty Ltd v Narui Gold Coast PtyLtd [2011] NSWSC 11. (As to the circumstances in which an indemnity costs order may also be the subject of a gross sum costs order, see Ghosh v Miller (No 2) [2015] NSWSC 1287 at [7].)

77. As to this final issue about which an applicant for a costs order must satisfy the court – namely, that the court has sufficient information to embark upon the exercise - there is no affidavit by a costs consultant, or summary of legal costs beyond accounts from counsel which state little more than a date and a dollar figure. This is a fatal defect, given my order of 30 July 2015 that Dr Ghosh provide a properly itemised list of disbursements and legal fees by 13 August 2015. Nor is there any discount given to take into account items which might be deducted to take into account items likely to be reduced on assessment. For example, the fees charged for service on the defendants are far in excess of those which would be considered reasonable by a costs assessor.

78. The plaintiff has (apart from Elkaim SC DCJ’s costs order of 1 November 2013) no costs orders in her favour for any of the occasions for which she has claimed costs. Either costs were awarded against her, or they may well be awarded against her at a later stage, given that, on the dates in question, she commenced in the wrong court, brought proceedings against Google which were struck out with costs, brought applications which were dismissed and failed to serve interstate defendants correctly: Munn v Tunks (Supreme Court of New South Wales, Nicholas J, 6 May 2013, unreported); Munn v Tunks [2013] NSWSC 1263.

79. There has been delay by both sides in this case, particularly when the defendants were represented by Mr Busby. The proceedings were repeatedly listed in the Defamation List until mid-2014 without making any progress. However, these delays, which appear to have been the fault of all of the parties, did not result in any costs orders.

80. The plaintiff was repeatedly advised by the court that service had to be effected in accordance with the relevant rules and legislation for personal service and interstate service. Her failure to do so was a contributing factor in the delay, as was her inability to draft a statement of claim with precision and in a court with jurisdiction to hear her claim.

81. Dr Ghosh complained about the “negligence” of the court in not giving her more assistance, and in particular in not telling her to seek costs orders. Advising Dr Ghosh to comply with her obligations to effect service was all that the court was obliged to do. Contrary to Dr Ghosh’s submissions, the judges before whom she appeared on those occasions were not obliged to advise her to reserve costs or seek costs orders. She was represented by experienced counsel in 2014, and any such application could have been made by them. Given the inadequacy of her pleadings and dilatory conduct of this action, I am satisfied that any such application, if made, would have been refused.

Orders

82. The plaintiff’s Notice of Motion is dismissed with costs. I will grant liberty to apply in the event that any application for a different costs order is to be made.

83. Dr Ghosh’s unmeritorious application for a garnishee order for the costs of the 1 November 2013 directions hearing involved considerable effort and time by registry staff. Thanks to their “eagle-eyed” (Rapisarda v Colladon [2014] EWFC 35 at [59]) efficiency, appropriate orders were made. I am forwarding a copy of this judgment to the court’s Rules Committee to ensure that the UCPR provides sufficient safeguards, as well as provisions of assistance to the court’s hard-working registry staff, in the event that applications of this kind are made in future by other litigants.

84. I make the following orders:

1. Plaintiff’s application for gross sum costs order pursuant s 98 Civil Procedure Act 2005 (NSW) dismissed.

2. Plaintiff pay defendants’ costs of and concerning this motion.

3. Any further application for costs for each of the 10 occasions identified by the plaintiff in her notice of motion is to be left to the trial judge.

4. Liberty to apply in relation to costs.

5. Exhibits retained for 28 days.

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Amendments

22 September 2015 - Orders revised.