Gillies v State of New South Wales (No 2)

[2022] NSWSC 968

Supreme Court

New South Wales

Medium Neutral Citation:

Gillies v State of New South Wales & Ors (No 2) [2022] NSWSC 968

Hearing dates:

Written submissions

Date of orders:

19 July 2022

Decision date:

19 July 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   The plaintiff is to pay the defendants' costs of the proceedings, as agreed or assessed.

Catchwords:

COSTS – Whether costs should follow the event – No point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Gillies v State of NSW & Ors [2022] NSWSC 640

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

Category:

Costs

Parties:

Max Perry Gillies – Plaintiff
State of New South Wales – First Defendant
Attorney-General for New South Wales – Second Defendant
Mark Speakman – Third Defendant
Steve Benson – Fourth Defendant
Catherine D’Elia – Fifth Defendant
Holly Stenning – Sixth Defendant
Natalie Adams – Seventh Defendant

Representation:

Counsel:
Self-represented – Plaintiff
N Bentley – Defendants

Solicitors:
Self-represented – Plaintiff
Crown Solicitor for New South Wales – Defendants

File Number(s):

2021/321823

Publication restriction:

Nil

Judgment

1. On 30 May 2022 I dismissed the proceedings brought by the plaintiff against the first, second, third, fourth, fifth, sixth and seventh defendants. [1] On that occasion I gave the parties the opportunity to provide written submissions as to costs.

   1. Gillies v State of NSW & Ors [2022] NSWSC 640.

2. In submissions dated 1 June 2022, the plaintiff submitted that any order for costs against him would “serve as a further grounds of compounding targeted malicious and aggravated bias action towards the plaintiff". [2] He expressly acknowledged that costs are in the discretion of the Court, and that r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) “provides, relevantly, that costs follow the event unless the Court considers some other order ought be made”. [3]

   2. Written submissions at [1].

   3. Written submissions at [3].

3. Counsel for the defendants submitted that there was no reason to depart from the usual rule that costs should follow the event. [4] In advancing that submission, counsel drew attention to the fact that on 1 February 2022 the solicitor for the defendants wrote to the plaintiff pointing out the deficiencies in the statement of claim, and inviting him to withdraw it. The plaintiff refused to do so, and also refused to concede that his statement of claim was deficient after being served with the defendants’ written submissions and notice of Motion seeking a dismissal of the proceedings. [5]

   4. Written submissions at [4].

   5. Written submissions at [5].

4. Section 98(1) of the Civil Procedure Act 2005 (NSW) is in the following terms:

Courts powers as to costs

(1) Subject to rules of court and to this or any other Act--

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

5. The “usual rule” as to costs is set out in r 42.1 of the rules in the following terms:

42.1 Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

6. In my view, there is no reason to depart from the usual rule that costs should follow the event. The defendants are entitled to their costs given their success in the proceedings. [6]

   6. See generally Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] – [70].

7. For these reasons I make the following order:

1. The plaintiff is to pay the defendants' costs of the proceedings, as agreed or assessed.

Endnotes