Herbert v New South Wales Land and Housing Corporation (No 2)

[2020] NSWSC 91

Supreme Court

New South Wales

Medium Neutral Citation:	Herbert v New South Wales Land and Housing Corporation (No 2) [2020] NSWSC 91
Hearing dates:	18 February 2020
Decision date:	18 February 2020
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	The plaintiff to pay the first defendant’s costs of the proceedings.
Catchwords:	COSTS — Party/Party — General rule that costs follow the event – whether any reason to depart from the general rule – appeal not a reason to defer making costs order – no disentitling conduct made out
Legislation Cited:	Civil Procedure Regulation 2017 (NSW), cl 12 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Herbert v New South Wales Land and Housing Corporation [2019] NSWSC 1703
Category:	Costs
Parties:	Stephen Noel Herbert (Plaintiff) New South Wales Land and Housing Corporation (First defendant) New South Wales Civil and Administrative Tribunal (Second defendant)
Representation:	Counsel: Plaintiff (in person) N Simpson (First defendant)   Solicitors: New South Wales Land and Housing Corporation (First defendant)
File Number(s):	2019/240755

Judgment

Introduction

1. I made orders and delivered reasons in this matter on 2 December 2019: Herbert v New South Wales Land and Housing Corporation [2019] NSWSC 1703 (the principal decision). My orders included an order that the appeal be dismissed and an order that costs be reserved. Stephen Herbert (the plaintiff) submitted that there ought be no order as to costs. New South Wales Land and Housing Corporation (the first defendant) submitted that there was no reason to depart from the usual rule that costs follow the event (Uniform Civil Procedure Rules 2005 (NSW), r 42.1) and that, accordingly, the plaintiff ought be ordered to pay its costs as the first defendant was the successful party.

Submissions

2. The plaintiff, who appeared on his own behalf at the costs hearing, submitted in writing that there were three reasons why there ought to be a departure from the usual rule. First, he submitted that it was inappropriate that costs be determined in circumstances where he has already appealed against the principal decision.

3. Secondly, he submitted that the first defendant’s legal representatives had failed to comply with orders of the court and that, in these circumstances, the first defendant ought not have the benefit of a costs order in its favour. He did not identify any of the court’s orders with which the first defendant had failed to comply, but submitted that the first defendant’s legal representative had told the court that the first defendant would evaluate the plaintiff’s further application for a rent subsidy and that it failed to do so.

4. Thirdly, Mr Herbert submitted that I should not order costs because I “[have] an apprehended bias against [Mr Herbert].” I note that I have determined two other unrelated matters in which Mr Herbert has had some involvement. Mr Herbert confirmed that Mr Atkin of counsel, who appeared for him at the substantive hearing of the matter, had received those instructions from him but that, as I understand it, Mr Atkin had declined to put the submission and explained to Mr Herbert that he could not do so because of his professional obligations.

Consideration

5. As to the first matter, the fact of an appeal provides no reason for deferring the making of a costs order. Any such order is susceptible to being set aside if the appeal is upheld. It is desirable that proceedings at first instance, including issues relating to costs, be concluded before matters are considered by the Court of Appeal.

6. As to the second matter, Mr Herbert acknowledged that his complaint was not that the first defendant had failed to comply with orders of the court, but rather, that the first defendant had failed to fulfil an expectation that its counsel had engendered in Mr Herbert in the course of proceedings by a statement made to the court. As referred to above, I understood the complaint to be that the first defendant did not process the plaintiff’s further application for a rent subsidy.

7. This complaint was not supported by evidence. Further, the complaint relates to events that post-dated the commencement of these proceedings on 19 September 2019. The substantive relief claimed by the plaintiff in these proceedings was that the dismissal of his appeal against the termination order made by the Civil and Administrative Tribunal ought be set aside. The first defendant was entitled to have the question of the validity of the termination order litigated and was not obliged to consider any further application for rent subsidy by the plaintiff. In these circumstances, I am not prepared to infer, much less conclude, that the first defendant was guilty of any disqualifying conduct that would disentitle it from obtaining an order for costs in its favour.

8. As to the third matter, I did not understand Mr Herbert to press this submission when making oral submissions. In any event, I do not accept that there was substance in the allegation. Where a person is involved in multiple proceedings in this Division, it is to be expected that a judge or judges will hear aspects of such proceedings. This, of itself, is insufficient to give rise to any apprehension of bias.

9. I do not regard the plaintiff as having raised any reason why costs ought not follow the event.

10. Further, I note that Mr Herbert was represented by Mr Atkin in the substantive hearing (but not on the application for costs), who was, relevantly, a barrister who had accepted the brief as part of the pro bono scheme administered by the New South Wales Bar Association. It was on this basis that Campbell J, at a directions hearing on 2 August 2019, noted:

“Fees payable in these proceedings and for other documents to be filed are postponed until judgment has been given in this matter in accordance with regulation 12 of the Civil Procedure Regulation 2012 [sic] (NSW).”

11. The effect of cl 12 of the Civil Procedure Regulation 2017 (NSW) is that a fee in proceedings involving a “pro bono party” (such as Mr Herbert) which is “payable by the party” is not to be “taken at all, or if taken, must be remitted” if, relevantly, “judgment is against the pro bono party”: cl 12(2)(a). It would not appear that this provision would affect the costs which the plaintiff must pay to the first defendant since the first defendant’s costs presumably do not include fees that would have been payable by the plaintiff.

Orders

12. For the reasons given above, I make the following order:

1. The plaintiff to pay the first defendant’s costs of the proceedings.

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Decision last updated: 18 February 2020