Jabbar v Gade (No 3) (pseudonyms)

[2022] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation:

Jabbar v Gade (No 3) (pseudonyms) [2022] NSWSC 998

Hearing dates:

Written submissions on 21 February and 14 March 2022

Date of orders:

16 August 2022

Decision date:

16 August 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court has determined in this matter to make gross sum cost orders with respect to the plaintiff’s costs motion and the defendant’s costs motion. The plaintiff should bring in Short Minutes of Order reflecting this judgment within 3 days of the publication of the judgment.

Catchwords:

COSTS – judgment in favour of both plaintiff and defendant in actions for damages – notice of motion – costs for both parties – offer of compromise – indemnity costs – gross sum costs – orders made.

Legislation Cited:

Civil Procedure Act2005 (NSW), s 98

Courts Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW), s 338

Criminal Procedure Act 1986 (NSW), s 49

Family Law Act 1975 (Cth)

Uniform Civil Procedure Rules 2005 (NSW), rr 42.15, 42.34

Cases Cited:

Aquaqueen International Pty Ltd [2015] NSWSC 500

Gade & Jabbar (No 11) [2018] FCCA 1056

Gade & Jabbar (No 5) [2017] FCCA 662

Gade & Jabbar [2015] FCCA 3607

Hamod v State of NSW [2011] NSWCA 375

Jabbar & Gade (No 22) [2019] FCCA 2186

Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660

Jabbar v Gade(pseudonyms) [2018] NSWSC 836

Jabbar v Gade (pseudonyms) [2021] NSWSC 997

Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading at all material times as Sparke Helmore (No 2) [2021] NSWSC 1126

Category:

Costs

Parties:

Jabbar (a pseudonym) (Plaintiff)
Gade (a pseudonym) (Defendant)

Representation:

Counsel:
Plaintiff in person
M Weightman (Defendant)

Solicitors:
NLS Law Pty Ltd (Defendant)

File Number(s):

2017/203002

Publication restriction:

The judgment was published to parties only on 16 August 2022. After the parties were given an opportunity to request amendments to conform with relevant orders of the Court, the judgment was published.

Judgment

1. HIS HONOUR: On 4 July 2017, the plaintiff, Jabbar (a pseudonym), filed a Statement of Claim (“SOC”) in which she sought damages against her former husband, the defendant, Gade (a pseudonym).

2. The Amended Statement of Claim was filed on 7 December 2017 (“ASOC”). An Amended Defence was filed on 12 July 2019.

3. The ASOC was founded upon five claims of assault and battery by the plaintiff, against the defendant, and a claim for damages as a result of those alleged incidents. (I shall refer to each alleged assault in numbered chronological order such as “the first assault”, although plainly each assault must be established by the plaintiff. Collectively, the five assaults shall be referred to as “the assaults”).

4. The pleaded assaults were as follows:

1. 25 June 2007 at Lucknow, India (“the first assault”);

2. 9 December 2007 at Lucknow, India (“the second assault”);

3. 2 March 2013 at Adamstown, New South Wales (“the third assault”);

4. on or about 16 April 2014 at Adamstown, New South Wales (“the fourth assault”); and

5. on or about 14 July 2015 at Adamstown, New South Wales (“the fifth assault”).

5. The defendant admitted the third assault but otherwise denied the other assaults. The defendant relied upon a limitation defence with respect for all the pleaded assaults, save for the fifth assault.

6. In Jabbar v Gade (No 2) (pseydonyms) [2021] NSWSC 1660 (“Jabbar December 2021”), the Court rejected the plaintiff’s case as to the first, second, fourth and fifth assaults. The court found the third assault was proven within the parameters of the finding made at [73] and [80].

7. The Court found that the plaintiff had established liability with respect to the third assault and assessed general damages at $7000: see [126].

8. Save for orders made under the Courts Suppression and Non-publication Orders Act 2010 (NSW) on 28 January 2022, the Court made orders arising from Jabbar December 2021 as follows:

1. Verdict and judgment for the plaintiff in relation to the assault on 2 March 2013 in the amount of $7,000.00.

2. Verdict and judgment for the defendant in relation to the assaults alleged by the plaintiff to have occurred on:

1. 25 June 2007.

2. 9 December 2007.

3. 16 April 2014.

4. 14 July 2015.

3. Any application by either party concerning costs is to be made by filing a Notice of Motion with affidavit in support by 31 January 2022.

9. On 10 February 2022, those orders were varied to provide that any application by either party concerning costs was to be made by filing a Notice of Motion with affidavit in support by 21 February 2022. Ultimately, the Court made the following orders vis-à-vis costs:

1. The defendant file and serve submissions in relation to costs by 21 February 2022.

2. The plaintiff file and serve submissions in relation to costs by 14 March 2022.

3. The question of costs be dealt with in chambers on the papers.

4. The listings before the Registrar on 24 February 2022 and 1 March 2022 be vacated.

BACKGROUND

10. I shall commence by briefly traversing some of the evidence which fell in that category and, in doing so, provide a background or context for the issues which require consideration in this judgment.

11. The parties were married in India on 30 June 2002. Their daughter was born in 2006 and their son was born in 2012 after their migration to Australia in 2008.

12. The plaintiff and defendant separated in August 2015.

13. In 2015, the defendant filed a parenting application in the Federal Circuit Court of Australia (“FCCA”). There then ensued extensive family law proceedings in the FCCA, Federal Court of Australia and High Court of Australia, which broadly ranged across the following:

1. The making of interim orders for children to live with the defendant on 31 August 2015: Gade & Jabbar [2015] FCCA 3607;

2. The commencement of divorce proceedings in 2016;

3. The amendment of parenting orders, including plaintiff being restrained from custody of her children: Gade & Jabbar (No 5) [2017] FCCA 662;

4. On 11 May 2018, the making of final orders in the FCC that the children were to reside with the defendant on a final basis: Gade & Jabbar (No 11) [2018] FCCA 1056; and

5. Subsequent interlocutory and appellate proceedings.

14. On 16 August 2019, the plaintiff was declared a vexatious litigation for the purpose of the Family Law Act 1975 (Cth): Jabbar & Gade (No 22) [2019] FCCA 2186.

15. One issue consistently arising out of the contested evidence and connected to proceedings in the FCCA and Family Court was the issue of an audio-visual recording of the plaintiff and her children which the plaintiff contended was fake. That issue was highly contentious in the various family law proceedings and remained so in these proceedings because of contested images of the plaintiff which the defendant contended represented the plaintiff assaulting the oldest child. That evidence is also before this Court in cross-examination as response to the material relied upon by the plaintiff out of family law proceedings.

16. The plaintiff had consistently sought access to the mobile phone for forensic analysis both with respect to those images and a text message alleged to have been received on the phone from the plaintiff, to demonstrate they were “fake”. I will turn to those questions below.

EARLIER PROCEDURAL HISTORY IN THESE PROCEEDINGS

17. On 10 October 2017, the defendant filed a Notice of Motion It was agreed, by consent, that the costs of the Notice of Motion filed by the defendant on that date be the defendant’s costs in the cause and the motion be otherwise dismissed (“the 2017 orders”).

18. On 30 May 2018, Lonergan J dismissed a Notice of Motion filed by the defendant on 15 March 2018 seeking to strike out certain paragraphs of the ASOC. Her Honour ordered that the defendant was to pay the plaintiffs costs of the Notice of Motion (“the 2018 costs orders”): Jabbar v Gade(pseudonyms) [2018] NSWSC 836 (“Jabbar 2018”).

19. On 20 May 2019, Campbell J vacated the trial on the morning of the first day and ordered the plaintiff to pay the defendant’s costs thrown away by reason of the vacation (“the 2019 costs orders”).

20. On 6 August 2021, Button J dismissed a Notice of Motion brought by the plaintiff seeking injunctive relief against the defendant during a period in which a substantive judgment of the court was reserved. Button J ordered that the plaintiff pay the defendant costs (“the 6 August 2021 orders”). The substantive judgment in that respect concerned a motion by the plaintiff to further amend the ASOC and to file further evidence at a late stage the trial of the ASOC.

21. The reserved substantive judgment referred to in the previous paragraph was delivered on 9 August 2021. The Court dismissed the motion brought by the plaintiff. The plaintiff was ordered to pay the defendant’s costs of the motion as agreed or in default as assessed: Jabbar v Gade [2021] NSWSC 997 (“the 9 August 2021 costs orders” or “Jabbar August 2021”).

22. The particular procedural history in reaching that judgment in Jabbar December 2021 was described in that judgment as follows at [12]-[18]:

[12] The hearing of the matter commenced on 29 July 2020. The plaintiff was self-represented. The defendant was represented by Mr M Weightman of counsel. The matter proceeded over 5 days for the taking of evidence ranging from 29-31 July 2020 and 22-23 September 2020. The plaintiff and the defendant both gave evidence and were cross-examined. After the filing of substantial written submissions, oral submissions commenced on 23 September 2020 and continued on 3 February 2021. At the close of oral submissions on 3 February 2021, the Court reserved its decision upon the receipt of chronologies. The chronologies were received from the defendant on 25 February 2021 and the plaintiff on 5 March 2021, at which date judgment was then reserved.

[13] By an amended notice of motion (“the Motion”) filed 5 February 2021, the plaintiff sought the following:

(1) Leave to re-open the case.

(2) Plaintiff be allowed to file further amended “Statement of Claim”.

(3) Matter listed as soon as possible.

[14] By the Motion, the plaintiff sought to further amend the amended statement of claim and to file further evidence. The plaintiff filed two written submissions in support of the Motion on 17 March 2021 and 6 April 2021, respectively (a further amended statement of claim was attached to the latter submission).

[15] In oral submissions on the Motion, the plaintiff made clear that the Motion was primarily directed to a further amendment of the statement of claim, although she also sought adduce further evidence flowing from the amended claim.

[16] The application was supported by the plaintiff’s affidavit evidence of 5 February and 5 March 2021, respectively, and documentary evidence. The affidavit of 5 February had 3 annexures and the affidavit of 5 March had 33 annexures.

[17] The plaintiff tendered four further documents on the Motion as follows:

(1) application for an Apprehended Domestic Violence Order (“ADVO”) by the plaintiff;

(2) advise of Court Result (document concerning the AVO application);

(3) transcript of proceedings before Magistrate Crews of 20 April 2021; and

(4) correspondence from NLS Law to the plaintiff dated 21 May 2021.

[18] All of the evidence led on the Motion was intended for the use in the primary proceedings.

Notices of Motion as to Costs

23. On 2 February 2022, the plaintiff filed a Notice of Motion in accordance with the court’s directions seeking the defendant pay $60,000 to the plaintiff “within one week of these orders” (“the plaintiff’s costs motion”).

24. The plaintiff filed an affidavit in support of the Notice of Motion. She stated that in April 2017 she had informed the defendant “about the process to file a case in Australian Court regarding his physical abuse towards him”; attached various invoices in the sum of $40,000; estimated costs of transcripts to amount to $3,000 and photocopies, travelling interest on borrowed money and discussions with different lawyers at $10,000. Additionally, the plaintiff referred to orders dated “25 January 2022” by which the defendant was to pay her $7,000 (being the damages awarded by the Court in Jabbar December 2021).

25. The defendant filed a Notice of Motion on 2 February 2022 seeking costs.

26. As the relief sought by the defendant was altered by the defendant’s written submission, I will not set out the orders sought in that respect at this junction, save to mention that in the first prayer of relief the defendant sought that the plaintiff pay the defendant’s costs in respect of the claim on an indemnity bases from 18 October 2018.

27. The Notice of Motion was supported by an affidavit of Neisha Shepherd (“Ms Shepherd”) of 2 February 2022. The plaintiff contested the affidavit of Ms Shepherd on the basis that she was not a party to the case, however the affidavit is that of the solicitor for the defendant in the proceedings. By that affidavit, Ms Shepherd refers to an Offer of Compromise in the following terms:

My firm has previously acted for the defendant in proceedings concerning:

a. Parenting and property settlement in the Federal Circuit Court of Australia, first commenced in 2015.

b. Appeals by Jabbar from decisions of the Federal Circuit Court of Australia to the Full Court of the Family Court or Australia.

c. Special Leave Applications by Jabbar to the High Court of Australia from the Full Court of the Family Court of Australia (although no Application proceeded to the point where Gade was required to file any documents except the Notices of Appearance).

d. An ADVO applied for by NSW Police in the Local Court of New South Wales for the protection of Jabbar which was dismissed on 13 January 2016.

e. A charge of common assault against Gade brought in the Local Court of New South Wales, to which Gade pleaded guilty.

f. Two (2) Applications for an ADVO filed by Jabbar personally against Gade in the Local Court of New South Wales, the first of which was dismissed on 1 June 2020, and the second of which was dismissed on 30 April 2021.

g. An Appeal by Jabbar in the District Court of New South Wales against the dismissal of the ADVO Application which had been dismissed on 30 April 2021, which was dismissed on 26 November 2021.

h. A Statement of Claim filed by Jabbar in the District Court of NSW against the defendant Gade which was dismissed on 15 September 2017.

On 17 0ctober 2018, an Offer of Compromise pursuant to r.20.26 of the Uniform Civil Procedure Rules 2005 was served on the plaintiffs then solicitors, under cover of a letter from my firm which indicated if there was a defect in the Offer of Compromise, the same offer would be relied upon as a Calderbank offer. The offer was open for acceptance for 28-days from the date it was made. Annexed hereto and marked with the letter "A" on p.7 is a copy of the cover letter, the Offer of Compromise and email dated 17 0ctober 2018.

28. Collectively, the plaintiff’s costs motion and the defendant’s costs motions shall be referred to as “the motions”.

Submissions for the Plaintiff

29. The plaintiff filed a short-written submission dated 14 March 2022 in which the plaintiff argued that the defendant had effectively filed no evidence. It was argued that the Court should therefore reject the costs application from the defendant and order the payment of costs as sought in the plaintiff’s costs motion.

30. It was also contended that, if the Court were to accept Ms Shepherd’s affidavit in support of the defendant’s cost motion, that the Court should give the plaintiff permission, under s 338(1) of the Crimes Act 1900 (NSW), to file an application against Ms Shepherd for “perjury” and “Contempt of court” by way of a private prosecution under s 49 of the Criminal Procedure Act 1986 (NSW). The reason stated for this course was that Ms Shepherd’s affidavit “is a bundle of lies” but also, she contended that the Court should permit the plaintiff to file “an application against [the defendant] for ‘Pervert the natural course of justice’ and ‘Contempt of Court’ and several counts of Perjury. There is, in my view, nothing on the material before the Court that would warrant the Court coming to those conclusions or making those proposed orders (assuming the Court had the power to do so).

31. It should be noted, however, that the annexures to the affidavit of the plaintiff of 2 February 2022 include various documents dealing with costs incurred by the plaintiff. I propose to take that material into account as evidence in support of the plaintiff’s costs motion and also as submissions by the plaintiff on that motion.

Submissions for the Defendant

32. In summary, the defendant made the following submissions:

1. The defendant served an Offer of Compromise on 17 October 2018 which, if accepted, could have resulted in the plaintiff having obtained a judgment for $20,000 and an order that the defendant pay her costs. As the plaintiff obtained an order or judgment on her claim no more favourable to her than the terms of the offer and there was no reason for the Court to otherwise order, the defendant should have his costs on an indemnity basis from 18 October 2018.

2. The Court has an unrestrained discretion to make a gross sum costs order and there are specific reasons for making such an order in the present matter: Hamod v State of NSW and Anor [2011] NSWCA 375 at [813]-[820] (Beazley JA, as Her Excellency then was, with whom Giles and Whealy JJA agreed) (“Hamod”).

3. The Court should accept the amount set out in the affidavit of Ms Shepherd but discount the solicitor’s cost, not any of the “disbursements”, by 50%.

4. The court will be entitled to round figures which will be consistent with a general broad-brush approach to a gross sum costs order: Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading at all material times as Sparke Helmore (No 2) [2021] NSWSC 1126 (“Shoal Bay Beach”) at [5]-[6] (Adamson J).

5. The orders that should be made by the Court on this basis are as follows:

1. The 6 August 2021 costs orders are discharged, and in their place, the plaintiff pay the defendant’s costs in the amount of $2,381.50.

2. The 9 August 2021 costs orders are discharged, and in its place, the plaintiff pay the defendant’s costs in the amount of $2,576.75.

3. The plaintiff pay the defendant’s costs of the proceedings in the amount of $85,147.08.

33. It is accepted by the defendant that the plaintiff would ordinarily have costs until 18 October 2018, but noting the Offer of Compromise, no such order should be made because, the plaintiff obtained a judgment against the defendant in this Court for only $7,000 which is “far short” of the threshold of $500,000 in r 42.34(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

34. Accordingly, the plaintiff’s costs motion should be dismissed, save for the 2018 costs orders.

35. The defendant contended that there was absence of evidence for some of the plaintiff’s claims for costs but made submissions in three categories: the 2018 costs orders; costs from the commencement of the proceedings until 18 October 2018 and the costs from 18 October 2018.

36. As to the first category, the defendant submitted that the Court would discharge the 2018 costs orders and, in their place, order that the defendant pay the plaintiff’s costs in the amount of $7,070.

37. As to the costs from the commencement of the proceedings until 18 October 2018, the defendant submitted that the plaintiff should not have her costs for the proceedings of this period. If the court rejected that submission, the court should consider the amounts claimed by the plaintiff having regard of the plaintiff’s evidence. On this basis, the plaintiff would be allowed costs of the proceedings until 17 October 2018 of $7,330.49.

38. As to the third period, the plaintiff should not have any of her costs of the proceedings after the Offer of Compromise. If the Court rejected this submission, the Court would consider the amounts claimed by the plaintiff using discounts contained within the cost’s schedules provided by the plaintiff, and when rounded, award a gross sum of $19,704.31.

CONSIDERATION

39. In the disposition of the respective motion, it is appropriate to deal with two broad considerations at the outset.

40. I consider the defendant is correct to submit that he is entitled to an order for indemnity costs after the service of the Offer of Compromise on 17 October 2018.

41. Rule 42.15 of the UCPR relevantly provides:

42.15 Where offer not accepted and judgment no more favourable to plaintiff

(1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim no more favourable to the plaintiff than the terms of the offer.

(2) Unless the court orders otherwise—

(a) the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and

(b) the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, assessed on an indemnity basis—

(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.

42. As contended by the defendant, the plaintiff obtained an order or judgment on the claim no more favourable than the offer of $20,000 and an order that the defendant pay her costs. The Court may also however have regard to the disposition of the question of costs in this judgment.

43. I will return to the question of whether, for the purposes of r 42.15(2)(a) of the UCPR, the plaintiff is entitled to an order against the defendant for the plaintiffs costs with respect to the claim to be assessed on an ordinary basis up to the time from which the defendant becomes entitled to costs under r 42.15(2)(b) of the UCPR. There is no reason in my view for the Court to “otherwise order” with respect to the defendant’s costs with respect to the period from 18 October 2018. The Offer of Compromise contained a significant element of compromise and would have seen the plaintiff obtain her costs.

44. In my view, the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, assessed on an indemnity basis, and from the beginning of the day following the day in which the Offer of Compromise was made.

45. The second broad consideration is whether the Court should make a gross sum costs order.

46. Section 98(4)(c) of the Civil Procedure Act 2005 (NSW) grants a discretion to a Court to make a costs order in a gross sum instead of the costs being assessed. Sections 98(1) and (4) provide as follows:

98 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.

…

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to—

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

47. In Hamod, Beazley JA (with whom Giles and Whealy JJA agreed), held at [813] – [820] that “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.” However, 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 the appropriate sum on the materials available.

48. I have been hesitant to award a gross sum costs order in this matter because the matter is not particularly complex or long although I accept the contention of the defendant that proceedings have been usually protracted having regard to the issues in dispute.

49. However, ultimately, I consider that there are substantial reasons for making a gross sum costs order having regard to the following factors relied upon by the defendant:

1. The plaintiff has used these proceedings to make “complaints about the processes or outcomes of Federal Circuit Court and Family Court proceedings” (Jabbar December 2021 at [27]).

2. There can be little doubt that the costs assessment process will be protracted and lengthy.

3. The plaintiff has been unrepresented for a considerable period through these proceedings. It may be assumed the plaintiff would remain unrepresented through any costs assessment process.

4. It is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment.

5. The defendant has two costs orders from other proceedings which remain unsatisfied.

6. The plaintiff’s financial circumstances are not clear. Having regard to submissions made by the plaintiff during the substantive proceedings, there is likely to be considerable difficulty in the defendant recovering costs from the plaintiff, including the costs of the assessment.

7. Each party has filed evidence of their costs – the issue of costs can be dealt with fairly by this Court.

8. Each party asks the Court to deal with costs, (the plaintiff impliedly), on a gross sum basis.

The Defendant’s Costs

50. Ms Shepherd annexed to her affidavit a bill of costs concerning claims for costs, namely, costs arising from the 6 August 2021 orders; the 9 August 2021 orders and the defendant’s costs of the proceedings from 18 October 2018. The defendant and his solicitor estimated the cost of dealing with the plaintiffs cost motion and the defendants cost motion to be $5,500 inclusive of GST.

51. The costs estimate provided by Ms Shepherd was as follows:

a. Costs and disbursements incurred by the defendant the subject of the costs order made by Button J on 6 August 2021, the schedule is annexed hereto and marked with the letter "G" on p.30. The costs total $3,443.00, ($2123.00 in professional costs, and $1,320.00 in disbursements).

b. Costs and disbursements incurred by the defendant the subject of the costs order made by Walton J on 9 August 2021, the schedule is annexed hereto and marked with the letter "H" on p.31. The costs total $3,393.50, ($1,633.50 in professional costs, and $1,760.00 in disbursements).

c. Costs and disbursements incurred by the defendant in the proceedings generally (not including those costs and disbursements relating to the above 2 costs orders) since 18 0ctober 2018 up until 20 December 2021, the schedule is annexed hereto and marked with the letter "I" on p.34. The costs total $120,096.83, ($69,899.50 in professional costs, and $50,197.33 in disbursements).

52. The defendant made reference to the decision of Black J in Aquaqueen International Pty Ltd [2015] NSWSC 500 at [30] (“Aquaqueen”) in which his Honour stated that, “the common practice in the Court in applications for gross sum costs orders of adopted 70% of the actual solicitor-client costs that had been claimed, [and] the fact that disbursements would ordinarily be recoverable in full.”

53. Counsel for the defendant then submitted that, in an attempt to achieve an early resolution of the costs issue, the defendant had instructed his solicitor to seek costs orders which could result in recovery of only 50% of the costs.

54. In the result, the costs orders described earlier in the summary of the submissions of the defendants were sought.

55. In my view the approach offered by the defendant in this respect is, for the most part, appropriate for the following reasons:

1. The costs claimed in and of themselves are not excessive, having regard to a vacated trial, 6 days of trial (including submissions) spread over three occasions, the provision of written submissions and failed notices of motion.

2. Aquaqueen concerned costs on an ordinary basis. The reasonableness of the defendant’s position is underlined by a conclusion that indemnity costs were available from the 18 October 2018.

3. A 50% reduction to take into account an award of gross sum costs is, at least,consistent with authority in dealing with costs on a gross sum basis.

56. However, I will make a small reduction in disbursements allowed.

57. In my view, with regard to the foregoing circumstances and allowing for rounding, the orders that should be made in favour of the defendant are:

1. For the 6 August 2021 orders be discharged and in its place the plaintiff shall pay the defendants costs in the amount of $2,200.

2. The 9 August 2021 orders be discharged and in its place the plaintiff shall pay the defendants costs in the amount of $2,400.

3. The plaintiff shall pay the defendant’s costs of the proceedings in the amount of $80,000.

58. I also note that, in my view, having regard to the ultimate disposition of costs in this judgment, that each party should pay their own cost with respect to the plaintiff’s and defendant’s cost motions.

The Plaintiff’s Costs

59. The plaintiff has sought an order that the defendant pay her $60,000.00.

60. Rule 42.34 of the UCPR, relevantly provides:

Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court

(1) This rule applies if—

(a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and

(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that—

(a) for proceedings that could have been commenced in the District Court—the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted …

61. Rule 42.34 of the UCPR provides that the Court retains a discretion to award the plaintiff her costs, but that a costs order “will not ordinarily be made” in such circumstances.

62. The defendant submitted that the plaintiff obtained a judgment against the defendant in the Supreme Court for only $7,000 which was considerably short of the $500,000 threshold contained within r 42.34(1)(a) of the UCPR. The proceedings could have been commenced in the District Court and there was no warrant to commence proceedings in this Court: UCPR r 42.34(2)(a).

63. The defendant accepted that the Court retained a discretion to award the plaintiff her costs pursuant to r 42.34 of the UCPR but that a costs order “will not ordinarily be made” in the circumstances. It was contended that there was no reason to depart from the usual course and the plaintiff should not be awarded the costs save for the costs concerning the defendants filed motion for which the plaintiff obtained a costs order: Jabbar 2018.

64. I do not accept the defendant’s submission in this respect. It is true that a costs order will not ordinarily be made where the judgment obtained was less than $500,000 but the Court retains a discretion if it made be said the proceedings are warranted in the Supreme Court. I am prepared to allow some latitude here in this case for an unrepresented litigant who proceeded upon the basis that she was prosecuting for five separate assaults which if established may well have resulted in damages exceeding the threshold. Whether the case is not legally complex, there were factual complexities. Further, it is not suggested that the case ran for longer than it should have in circumstances of an unrepresented litigant.

65. In my view, the case is broadly analogous to State of New South Wales v Quirk [2012] NSWCA 216. In that case, the Court of Appeal set aside a judgment in the sum of $175,000 and, in lieu thereof, awarded the plaintiff $95,000. The defendant invoked r 42.34 of the UCPR. Tobias AJA (with whom Beazley and Hoeben JJA agreed, as Her Excellency then was) stated at [169]-[171]:

[169]   There does not appear to be any authority as to the application of this rule. The appellant submitted that the present case could easily have been litigated in the District Court and did not require the determination of issues in the Supreme Court either as to the monetary basis of the respondent's claim or as to the complexity of the law. In this respect, actions for malicious prosecution, assault and false imprisonment are, so it was said, frequently heard in the District Court to no prejudice to the parties. Accordingly it was submitted that it was appropriate that the respondent not recover any of his costs of the proceedings.

[170] In the present case the provisions of rule 42.34(1)(a) are obviously satisfied. The respondent will receive a judgment for less than $500,000. It is a matter of contention as to whether the provisions of subpar (b) are satisfied given that the respondent has failed to succeed on his malicious prosecution claim. However, for present purposes, I will assume that he would be entitled to at least some order for costs against the appellant at first instance.

[171] I will therefore concentrate on the provisions of rule 42.34(2). True it is that the present case did not involve any complex legal issues and that the monetary amount to which the respondent would have been entitled had he succeeded on all his claims may not have exceeded the amount of $500,000. However had he so succeeded he may have been entitled to an amount approaching that figure. Importantly, the facts were complex involving as they did two separate incidents involving not insignificant conflicts of evidence. It was not suggested that the case ran for a period longer than it should have which was from 4 April to 21 April 2011 before a highly experienced judge of the Common Law Division of this Court. It was also conducted by experienced senior counsel on both sides. Although it is true that the case could have been litigated in the District Court, in my view the factual issues were sufficiently complex as to warrant the proceedings being commenced and continued in the Supreme Court. It therefore follows that in my view rule 42.34 has no application to the present case.”

66. In my view, [171] of the Court of Appeal’s reasons emphasise the discretionary nature of the considerations that the Court can take into account in determining whether r 42.34 of the UCPR is engaged.

67. I shall proceed to the consideration of the plaintiff’s claim for costs, but note the defendant’s concession that if, the Court rejected his contentions as to r 42.34 of the UCPR, the plaintiff should have her costs of the proceedings on an ordinary basis until 18 October 2018.

The Amount of the Plaintiff’s Costs

68. The plaintiff seeks a payment of $60,000.00, however of that amount:

1. $40,000.00 is claimed for costs, with various invoices being annexed to her affidavit;

2. $3,000.00 is claimed for transcript fees;

3. $10,000.00 is claimed for “photocopies, travelling, interest on borrowed money, discussion with different lawyers”; and

4. $7,000.00 is the actual judgment.

69. The defendant’s submissions as to those claims are as follows:

1. There is no evidence the plaintiff has paid anything for “transcript fees” – the claim should be rejected.

2. Even if such costs could be considered allowable, there is no evidence supporting “photocopies”, “travelling”, “interest on borrowed money”, or “discussion with different lawyers”.

3. There is plainly no need to allow an amount for the judgment; that order was made on 25 January 2022.

70. There is substance to the defendant’s submissions as to (2) and (3) above. It does appear to me that the Court may take notice of the plaintiff having obtained a transcript during the course of the proceedings and in that respect accept that the estimate given is reasonable.

71. The defendant contended that the resolution of the plaintiff’s general claim for costs, $40,000, may be dealt with by dividing the claim into three categories as follows:

1. The 2018 costs orders (“the first category”).

2. From the commencement of the proceedings to 18 October 2018 (“the second category”).

3. From 18 October 2018 to the conclusion of proceedings (“the third category”).

72. The defendant’s submission with respect to the first of these categories was as follows:

1. At least some of the plaintiff’s solicitor’s invoice of 25 May 2018 (p 4) must be taken to relate to the proceedings resulting in Jabbar 2018, but it is impossible to dissect what portion given the lump-sum nature of the invoice. Although arbitrary, the only reasonable approach is to allow half the amount of the invoice for the Notice of Motion, and half the amount for the balance of the proceedings (which will be taken up below).

2. There should be a discount to these fees to reflect the difference between costs charged by a solicitor and costs on an ordinary basis. As per Aquaqueen, 70% should be allowed.

3. The totality of counsel’s invoice of 30 May 2018 (p 6) relates to costs of proceedings resulting in Jabbar 2018, in which costs can be allowed in full.

4. As to costs properly afforded to the plaintiff, the defendant submitted:

The following should be allowed for the costs of the Notice of Motion, although the Court would be entitled to round these figures, which would be consistent with the general “broad-brush” approach to gross sum costs orders (Shoal Bay Beach at [5] – [6]):

Invoice Date	Annex A	Comment	Amount
25 May 2018	p.4	As per [37] – [38] above, half the invoice and solicitor allowed at 70%	$2,450.00
30 May 2018	p.6	Counsel allowed at full	$4,620.00
Total	$7,070.00

5. The following order should be made:

The order for costs made on 30 May 2018 is discharged, and in its place, the defendant pay the plaintiff’s costs in the amount of $7,070.00.

73. Based on the limited evidence before the Court, produced by the plaintiff in this respect, I accept the defendant’s submissions as a reasonable estimate of costs for the first category.

74. To the second category, the defendant submitted that the plaintiff should not have costs of the proceedings up until the Offer of Compromise. Given that I have rejected the defendant’s submissions seeking a refusal of the plaintiff’s costs up to 18 October 2018, the plaintiff should have her ordinary costs up until 18 October 2018 (as was conceded by the defendant).

75. As to the calculation of costs for that period, the defendant made the following submissions:

1. The invoices from the plaintiff’s solicitors of 20 November 2017, 21 November 2017 and 25 May 2018 are all in the form of a lump sum, so it is impossible to assess their reasonableness. Nevertheless, as per Aquaqueen, the costs can be allowed at 70%.

2. The 21 November 2017 invoice (p 3) includes an amount of $1,225.00 for Counsel’s fees, which can be allowed in full.

3. As mentioned with respect to the first category, half of the invoice should be allowed for the proceedings resulting in Jabbar 2018, and half for the substantive aspect of the proceedings.

4. The time cost schedule which accompanies the 21 December 2018 invoice reveals that, of that invoice, a total of $6,985.00, (which included a 21.3% discount to $5,500.00), the plaintiff was charged $1,045.00 (incl. GST) in an entry each on 31 May 2018 and 17 October 2018 (p 11; the 2-hour consultation seems excessive, but no issue is taken given the general discount which it is suggested should apply). With the discount of 21.3%, the costs of the 21 December 2018 invoice which relate to the period pre-Offer of Compromise was $822.41.

5. The defendant made the following submission as to the estimate of costs on this basis:

The following should be allowed for the costs of the proceedings up until 17 October 2018, although the Court would be entitled to round these figures, which would be consistent with the general “broad-brush” approach to gross sum costs orders (Shoal Bay Beach at [5] – [6]):

Invoice Date	Annex A	Comment	Amount
05/07/2017	p.1	Filing Fee at full	$1,101.00
20/11/2017	p.2	Solicitor allowed at 70%	$1,540.00
21/11/2017	p.3	Solicitor allowed at 70%	$316.75
21/11/2017	p.3	Counsel allowed at full	$1,347.50
25/05/2018	p.4	As per [45] above, solicitor allowed at 70%	$2,450.00
21/12/2018	p.9	As per [46] above, solicitor allowed at 70%	$575.69
Total	$7,330.94

76. I accept those submissions based on the contentions made however I round the costs to $7,500.

77. I would also allow a component for disbursements vis-à-vis transcript of $3,000.

78. As to the third category, I have reached a conclusion that the defendant should have indemnity costs for the final period. I do not consider the plaintiff should not have her costs for the proceedings after the Offer of Compromise.

79. If, contrary to my conclusion, a different conclusion was to be reached in that respect, I consider that the estimate of costs advanced by counsel for the defendant, in the alternative, is appropriate. That estimate of costs is set out below:

1. The balance of the 21 December 2018 invoice (p 9), with the 21.3% discount applied is $4,677.59 (that is, $5,500.00, less $822.41).

2. The 31 May 2019 invoice includes an amount of $3,850.00 for counsel, so the amount referable to the solicitor is $10,150.00 (that is, $14,000.00 less $3,850.00).

3. The defendant’s alternative estimate of costs as follows:

The following should be allowed for the costs from 18 October 2018 to the conclusion of the proceedings, although the Court would be entitled to round these figures, which would be consistent with the general “broad-brush” approach to gross sum costs orders (Shoal Bay Beach Constructions No.1 Pty Ltd v Hickey & Ors [2021] NSWSC 1126 at [5] – [6]):

Invoice Date	Annex A	Comment	Amount
21/12/2018	p.9	As per [46] above, solicitor allowed at 70%	$3,274.31
05/12/2018	p.13	Hearing Fee, allowed at full	$2,241.00
26/04/2019	p.14	Solicitor allowed at 70%	$3,234.00
31/05/2019	p.16	As per [50] above, solicitor allowed at 70%	$7,105.00
21/05/2019	p.16	Counsel allowed at full	$3,850.00
Total	$19,704.31

ORDERS

80. The Court has determined in this matter to make gross sum cost orders with respect to the plaintiff’s costs motion and the defendant’s costs motion. The plaintiff should bring in Short Minutes of Order reflecting this judgment within 3 days of the publication of the judgment.

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Decision last updated: 18 September 2022