Golden v V'landys (No 2)

[2015] NSWSC 1847

Supreme Court

New South Wales

Medium Neutral Citation:	Golden v V’landys (No 2) [2015] NSWSC 1847
Hearing dates:	On the papers
Decision date:	04 December 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	1. Extend the time under order (2) made on 17 November 2015 within which the plaintiff may make an application for a different order than the order that he pay the defendants’ costs of the proceedings.  2. Order the plaintiff to pay the defendants’ costs of the proceedings.
Catchwords:	COSTS – defendants wholly successful – application by plaintiff that there be no order as to costs – costs ought follow the event – no basis for different order – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 98 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Golden v V’landys [2015] NSWSC 1709 Oschlack v Richmond River Council (1998) 193 CLR 72
Category:	Costs
Parties:	Joseph Golden (Plaintiff) Peter V’landys (First Defendant) Racing New South Wales (Second Defendant)
Representation:	Solicitors: Moray & Agnew Lawyers (First Defendant) DLA Piper (Second Defendant)
File Number(s):	2013/140063

Judgment

Introduction

1. On 17 November 2015 I made orders and published reasons for my decision: Golden v V’landys [2015] NSWSC 1709. I made the following costs order:

“[2]   Unless any party makes an application for a different order in writing to my Associate within seven days, order the plaintiff to pay the defendants’ costs of the proceedings.”

2. By letter to my Associate dated 26 November 2015, Joseph Golden (the plaintiff) applied for an order that the order that he pay the defendants’ costs “be reversed”. I understood him to seek an order that there be no order as to costs. The application was made two days outside the seven day period allowed by the order and was supported by brief written submissions.

3. Although the defendants submitted that I ought not entertain the plaintiff’s application because it was made outside the time provided for in my order, they nonetheless made submissions as to why costs ought follow the event.

Whether time ought be extended

4. The time between the expiry of the opportunity in the order to apply for a different order and the forwarding of the application to my Associate was short (in the order of two days). The plaintiff explained that his (now former) solicitors sent him a scanned copy of the reasons by email which he was unable to access until 21 November 2015 (as he does not have internet access on the rural property where he lives) and that he responded within seven “business” days. Neither of the defendants identified any prejudice they would suffer as a result of the extension of time.

5. I am disposed to extend the time within which the plaintiff can made his application as I consider it to be in the interests of justice to do so, having regard to the matters in ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW).

The parties’ submissions

The plaintiff’s submissions

6. The plaintiff relies on the following in support of his submission that there should be no order as to costs:

“The legal action brought against V’landys and Racing NSW was based on a decision that I believed was flawed by the defendants, that has had a crippling effect on my livelihood and horse training and racing business, which I had built up over thirty years.

The legal advice I sought from Koffels Solicitors was that I had a strong case, a case that I have put all of my savings into prosecuting.

At no time was I advised by my legal team that the case should be discontinued.

The outcome for me has been devastating and I feel a very deep sense of injustice.”

The defendants’ submissions

7. The first and second defendants contended that the appropriate order was that the plaintiff pay the defendants’ costs of the proceedings.

8. The defendants submitted (separately), in substantially similar terms, that there is a presumption that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. They contended that the presumption can only be displaced where there has been some disentitling conduct on the part of the successful party: Oschlack v Richmond River Council (1998) 193 CLR 72 at [69]-[70] per McHugh J. They submitted that there was no basis to rebut the presumption in the present case. The second defendant made the further submission that any alleged deficiencies in the plaintiff’s legal representation were not relevant to the appropriate costs order to be made between the parties.

Consideration

9. The costs of the proceedings are in the discretion of the Court: s 98 of the Civil Procedure Act. However, the discretion is to be exercised judicially. Generally speaking, costs follow the event. In the present case, the defendants were successful and the plaintiff was unsuccessful. Accordingly, absent other considerations, the appropriate order would be that the plaintiff pay the defendants’ costs.

10. UCPR 42.1 provides:

“42.1 General rule that costs follow the event

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.”

11. The reason for the general principle that costs ought follow the event was articulated by McHugh J in Oschlack v Richmond River Council at [67]-[68] in the following terms:

“[67] . . .The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

[68] As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs

would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”

12. The loss of litigation, whether by plaintiff or defendant, can cause hardship. Litigation is expensive. Although the hearing of these proceedings occupied only two days (due to the efficient conduct of the case by the legal representatives of all parties), I assume that substantial preparation was required and many documents needed to be reviewed for the purposes of adducing the evidence. All of this was brought about by the plaintiff’s decision to commence and prosecute his claims for relief in the proceedings. The plaintiff has not identified any conduct which can be attributed to either of the defendants which makes it appear to me that I should make any order other than that costs ought follow the event.

13. The conduct relied upon by the plaintiff in support of the order he seeks is the conduct of his legal advisers. Whatever the merits or otherwise of his criticisms of his legal representatives (as to which I refrain from expressing any view), these are matters which I do not regard as warranting the displacement of the usual rule that costs follow the event. It does not appear to me that any order other than the usual order ought be made.

Orders

14. For the foregoing reasons I make the following orders:

1. Extend the time under order (2) made on 17 November 2015 within which the plaintiff may make an application for a different order than the order that he pay the defendants’ costs of the proceedings.

2. Order the plaintiff to pay the defendants’ costs of the proceedings.

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Decision last updated: 08 December 2015