GR v Public Guardian (No 2)

[2024] NSWSC 485

Supreme Court

New South Wales

Medium Neutral Citation:

GR v Public Guardian (No 2) [2024] NSWSC 485

Hearing dates:

On the papers

Date of orders:

30 April 2024

Decision date:

30 April 2024

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Plaintiff to pay second to fourth defendants’ costs assessed in the gross sum of $1,940 (exclusive of GST).

Catchwords:

COSTS — Party/Party — Bases of quantification — Ordinary basis — Assessed as a gross sum — No issue of principle

Cases Cited:

GR v Public Guardian [2024] NSWSC 205

Category:

Costs

Parties:

GR (Plaintiff)
Public Guardian (First Defendant)
NSW Trustee & Guardian (Second Defendant)
Department of Communities & Justice (Third Defendant)
Westmead Childrens Hospital (Fourth Defendant)
Impact Youth Services Pty Ltd (Fifth Defendant)

Representation:

Counsel: M Dalla-Pozza (Second, Third and Fourth Defendants)

Plaintiff (self-represented)

Solicitors: Crown Solicitor for NSW (Second, Third and Fourth Defendants)

File Number(s):

2023/55012

JUDGMENT

1. By a judgment delivered on 29 February 2024, the Court dismissed GR’s proceedings: GR v Public Guardian [2024] NSWSC 205. These reasons should be read, and assume familiarity with, the judgment. Defined terms in the judgment have the same meaning in these reasons, which dispose of an application brought by the second to fourth defendants for their costs and for those costs to be assessed on a gross sum basis. For the reasons which follow, those orders will be made.

Procedural history

2. On 29 February 2024, in dismissing the proceedings, the Court also ordered:

(4)   The first to fourth defendants are to serve and file by email to the associate to Kunc J an outline of submissions and any evidence in support of an application for their costs of these proceedings on or before 14 March 2024.

(5)   The plaintiff is to serve and file by email to the associate to Kunc J an outline of submissions together with any evidence on the question of costs on or before 28 March 2024.

(6)   Direct that the question of costs be determined on the papers unless the Court orders otherwise.

3. In compliance with the Court’s orders, on 14 March 2024 the Court received submissions prepared by Mr M Dalla-Pozza of Counsel for the second to fourth defendants, supported by an affidavit of Mr A Nicholas, the solicitor in the Crown Solicitor’s Office with the day to day carriage of these proceedings. The first defendant did not join in the application for costs and the fifth defendant has taken no part in the proceedings.

4. No evidence or submissions were received by the Court from GR on or before 28 March 2024 in accordance with the Court’s orders.

5. On 4 April 2024, GR sent an email to my associate which included:

“I have not had time to consider SCO’s submissions, and seek an extension of time to respond for reasons as given in my other proceedings against Newton [this refers to other proceedings brought by GR which I am case managing].

If this matter is listed, I seek to adjourn it for 2 weeks.”

6. On the same day, my associate replied:

“His Honour orders that the plaintiffs’ submissions in response are to be served and filed by email to me by 19 April 2024. His Honour will deal with the matter on the papers, if no submissions are received by 19 April 2024 he will assume that the second to fourth defendants’ costs application for $2,766.34 is not opposed.”

7. GR replied on the same day acknowledging my associate’s email and the extension in the timetable.

8. On Friday, 19 April 2024, GR emailed my associate:

“I have become busy in other matters, but will serve my submissions in reply by Monday or earlier.”

9. On Wednesday, 24 April 2024 (two days after the day on which GR said she would serve her submissions) my associate emailed GR:

“I refer to this matter and the requirement that submissions on costs were to be provided to his Honour by 19 April 2024. I would be grateful for advice about when I can expect to receive the submissions from the plaintiff.”

10. Eleven minutes after my associate’s email was sent, GR replied by email:

“I request an extension until 1 May for final submissions, I will try to email preliminary submissions today or by Friday this week. Can CSO please email me their submissions again please.”

11. The Court notes that the request to the defendants to email their submissions “again” contains an implicit admission that GR had in fact received those submissions. There is no doubt from the parties’ correspondence to the Court that GR received them at the time they were emailed to the Court on 14 March 2024. Those submissions are two pages long, as is Mr Nicholas’ affidavit in support. At the time of publication of these reasons, no submissions “preliminary” or otherwise, have been received from GR.

12. The Court rejects GR’s application for an extension and will proceed to deal with the second to fourth defendants’ costs application for these reasons:

1. GR has provided no explanation as to why she has been unable to comply with the Court’s orders.

2. The evidence and submissions relied upon by the second to fourth defendants are neither long nor complicated.

3. As will be apparent from various references in the judgment, over the last five years GR has become an experienced litigant in this Court and in the Court of Appeal, usually (but not always) appearing for herself. Having regard to this and the matters referred to in the preceding sub-paragraph, GR has had a more than reasonable time to provide her submissions.

4. The amount sought by the second to fourth defendants is very modest.

5. I observed in the judgment (at [38]) that “In short, by way of conclusion, the importance of maintaining the integrity of the processes of the Court and the overriding purpose identified in CPA ss 56 to 60 dictate that the time has come, as I have already said, for a clear line to be drawn under these proceedings”. That same clear line needs to be drawn under the present costs application, which in accordance with the overriding purpose should not have its disposition further delayed when GR has demonstrated no proper basis for any further indulgence.

The costs application

13. Mr Dalla-Pozza’s submissions, which the Court accepts, may be summarised as:

1. In dismissing the proceedings, the Court was acting under its inherent jurisdiction and related procedural powers (judgment [28]). That dismissal is the “event” for further purposes of considering the present costs application.

2. The basis for dismissing the proceedings was identified by the Court in the judgment as:

21   Mr Nicholas submitted that the Court should not order a timetable for a leave application because what GR had foreshadowed was, in effect, a completely different case based on different facts to those pleaded in the statement of claim. I understood this to be a submission that the Court could now determine that leave would not be granted, such that a timetable for any such application would be futile. He submitted that there was nothing in the statement of claim which averred that GR had suffered damages on any legal basis by reason of the matters currently pleaded. What was currently pleaded were facts that were all about AB and what had allegedly been done to AB.

3. The Court’s action pre-empted the need for the Court to determine the defendants’ extant motion for the proceedings to be summarily dismissed.

4. Given the Court’s reasons for dismissing the proceedings, it followed that the defendants’ motion would have been successful had it been heard and the defendants would have obtained an order for their costs.

5. The second to fourth defendants only sought their costs of the proceedings since their remitter to the Equity Division by the Court of Appeal. The costs incurred by the three defendants on a solicitor client basis for their solicitors and counsel since that time total $2,766.34.

6. The amount of costs claimed is small. GR’s undoubted litigious disposition demonstrated over several years means there is a real prospect that any costs assessment process could itself become a piece of satellite litigation. These considerations made this an appropriate case for the Court to exercise its discretion to assess costs on a gross sum basis.

7. It was accepted by the second to fourth defendants, in accordance with the principles governing such applications, that where costs on the ordinary basis were being assessed as a gross sum, a discount from solicitor client costs in the order of 30% to 35% would be appropriate.

14. Having regard to the matters set out in the preceding paragraph, and being satisfied of the reasonableness and economy of the costs sought, the Court will discount the solicitor client figures by 30% rounded to a final figure of $1,940 (exclusive of GST).

Conclusion

15. The order of the Court is:

1. The plaintiff is to pay the second to fourth defendants’ costs of the proceedings since their remitter to the Equity Division assessed in the gross sum of $1,940 (exclusive of GST).

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Decision last updated: 30 April 2024