Lewin v Racing NSW ABN 86281604417 (No 2)

[2018] NSWSC 470

Supreme Court

New South Wales

Medium Neutral Citation:

Lewin v Racing NSW ABN 86281604417 (No 2) [2018] NSWSC 470

Hearing dates:

Written Submissions

Date of orders:

19 April 2018

Decision date:

19 April 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Vacate Order 2 issued by the Court on 6 March 2018;

 

(2)   The plaintiff shall pay costs thrown away by the first, third and fourth defendants relating to the prayers for relief contained in prayers [2], [3], [4] and [6] of the Summons and/or Amended Summons filed in the proceedings;

 

(3)   The plaintiff pay the defendants’ costs of the hearing on 14 December 2017;

 (4)   Otherwise, the first, third and fourth defendants pay the plaintiff’s costs of and incidental to the proceedings.

Catchwords:

COSTS – ordinary rule that costs followed the event displaced by abandonment of grounds.

Legislation Cited:

Civil Procedure Act 2005, ss 56, 98
Racing Tribunal Regulations 2015, reg  5(2)
Supreme Court Act, ss 69, 75
Uniform Civil Procedure Rules 2005 (“UCPR”), Pt 42

Cases Cited:

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Yazgi v Permanent Custodians Pty (No 2) [2007] NSWCA 306

Category:

Costs

Parties:

Leo Lewin (Plaintiff)
Racing NSW ABN 86281604417 (First Defendant)
Minister for Racing for the State of New South Wales (Second Defendant)
State of New South Wales (Third Defendant)

Representation:

Counsel:
M Pesman (Plaintiff)
P Braham SC/D Birch (First Defendant)
J Emmett (Second Defendant)

  Solicitors:
Beazley Boorman Lawyers (Plaintiff)
Racing NSW (First Defendant)
Crown Solicitor’s Office (Second and Third Defendant)

File Number(s):

2017/272666

Judgment

1. HIS HONOUR: On 6 March 2018, the Court made orders declaring that the plaintiff had a right of appeal against the decision of the first defendant (“Racing NSW”) disqualifying the plaintiff from renewing his Bookmakers’ Licence. Orders were made in relation to costs and leave reserved for any party to apply for a different or special order as to costs within seven days and a response filed within a further seven days.

2. Racing NSW, having sought and obtained an extension of time as to the filing of submissions on costs, filed and served such an application and submission on 13 March 2018.

3. The State of New South Wales (the third defendant) filed and served a short application on 14 March 2018. The Court has received no response to these applications. A reasonable time since the filing of the application and submissions has elapsed and, as indicated, the Court will deal with the matter on the papers.

4. As submitted by the first defendant, the originating process initially sought a number of orders including orders for judicial review under s 69 of the Supreme Court Act 1970; a declaration that the plaintiff was a fit and proper person to be a licensed bookmaker; an order that Racing NSW issue a Bookmakers’ Licence to the plaintiff; an order that Racing NSW properly determine the application for a Bookmakers’ Licence from the plaintiff; and ancillary orders, including costs and damages. It also sought an order that reg  5(2) of the Racing Tribunal Regulations 2015 is or was ultra vires.

5. The initial Summons was filed when proceedings were commenced on 7 September 2017. On 10 November 2017, the plaintiff served on the defendants a proposed Amended Summons that abandoned prayers [2], [3] and [6] (the prayers for declaration as to fit and proper person; the requirement to issue a Bookmakers’ Licence to the plaintiff; and damages); maintained the judicial review application; and sought an order that the decision of Racing NSW be set aside.

6. On 7 December 2017, the written submissions of the plaintiff were filed and served. Those written submissions made clear that the plaintiff was abandoning application for judicial review and sought orders, the effect of which was that the decision not to allow the plaintiff to renew his Bookmakers’ Licence, was equivalent to a decision to cancel a licence and, lastly, a declaration that there was a right of appeal to the Racing Appeals Tribunal.

7. The ultimate Amended Summons was filed on 21 December 2017 and, in terms of originating process, that Amended Summons was the first occasion on which the plaintiff sought a declaration that there was a right of appeal to the Racing Appeals Tribunal.

8. As a result of the foregoing, the first defendant seeks its costs in relation to those grounds abandoned, namely, grounds 1-4 and ground 6 of the plaintiff’s Summons. Further, the first defendant seeks its costs of the hearing on 14 December 2017 (the date upon which the matter was originally listed for hearing) on which date the hearing was vacated and the listing of the matter adjourned until 16 February 2018.

9. The first defendant also seeks its costs that were thrown away on account of the adjournment. It should be noted that the adjournment occurred as a result of a failure by the plaintiff to join all of the necessary parties to the proceedings, including the Minister for Racing and the State of NSW, the latter being joined on 21 December 2017 by the filing and serving of the Amended Summons.

10. The State of NSW seeks to have the costs order initially made by the Court qualified so that it is liable to pay the plaintiff’s costs only from the date of the State’s joinder as a party, namely, from 21 December 2017.

Principles

11. Ordinarily, costs follow the event and the party that is successful has its costs paid, because those costs are a proper compensation for the costs and disbursements expended for the purpose of enforcing or defending its rights: Uniform Civil Procedure Rules 2005 (“UCPR”), rule 42.1. Apart from its power to award costs as part of the inherent power of a superior court of record of general jurisdiction, exercising both common law and equity jurisdiction, the discretion to award costs is prescribed by s 98 of the Civil Procedure Act 2005.

12. Costs are in the discretion of the Court, as are the determination by whom, to whom; and to what extent costs are to be paid and the basis of the calculation of such costs. The discretion reposed in the Court is to be exercised judicially. The general power to issue orders for costs contained in s 98 of the Civil Procedure Act is qualified by the subjection to the rules of the Court and those rules are contained, amongst other places, in pt 42 of the UCPR.

13. The provisions of UCPR r 42.1 reflect the common law position and the requirement to exercise the discretion judicially.

14. As earlier stated, to the extent that costs have been reasonably incurred in the conduct of litigation to assert or defend one’s rights or another’s duties or obligations, a successful party should have its costs paid by the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97; [1998] HCA 11; Latoudis v Casey (1990) 170 CLR 534 at 566-7; [1990] HCA 59.

15. As earlier stated also, costs are compensatory, not punitive. Their purpose is to compensate the successful party for the cost of asserting or defending the legal rights the party may possess: Ohn v Walton (1995) 36 NSWLR 77 at 79.

16. Generally, where a party asserts a right on a number of bases, the Court will not separate the costs of the successful basis from any other basis upon which the plaintiff sought to rely: Yazgi v Permanent Custodians Pty (No 2) [2007] NSWCA 306. In Yazgi, supra, a number of issues were raised, which the Court of Appeal held were appropriate and which did not prolong the trial in any substantial way, as a consequence of which the Court of Appeal concluded that there should be no apportionment between the different issues.

17. Further, any apportionment that may occur between successful and unsuccessful issues raised by the successful party will not be calculated on a mathematical or arithmetic basis, but will be assessed on the basis of an overall assessment of the whole of the proceedings.

18. In exercising the discretion under s 98 of the Civil Procedure Act or under Pt 42 of the UCPR, the Court should consider the overriding purpose of the Act prescribed by s 56 of the Civil Procedure Act in the exercise of that discretion. There are conflicting aspects of the application of that overriding purpose.

19. It would facilitate the just, quick and cheap resolution of the real issues between the parties, if parties considered their position and pursued claims or defences that were available on the known evidence of the time that the issues are agitated.

20. It is clear from the history of this matter, that a number of the prayers, ultimately abandoned by the plaintiff, were not issues that were appropriately pursued, in light either of the applicable law or the available evidence and facts.

21. It may be that the abandonment of a number of the claims caused little or no inconvenience or cost. Certainly, for the purposes of dealing with the costs of the State of NSW, the abandonment of claims was relatively immaterial, given the lateness with which the State of NSW was joined as a party. The costs thrown away are confined to those costs that were unnecessary, or would have been, but for the abandoned prayer.

22. On the other hand, in relation to Racing NSW, affidavits and other material were gathered for the purpose of dealing with those abandoned claims. There may not be substantial costs associated with that work.

23. It is inappropriate for the first defendant to be required: first, to pay the plaintiff’s costs in relation to those abandoned issues; and, secondly, to pay its own costs in relation to work done that was ultimately useless, given the abandonment of those claims. Those grounds include grounds 2-4 and 6 of the plaintiff’s original Summons.

24. The first defendant seeks its costs in relation to prayer [1], the prayer for judicial review. I am of the view that prayer [1], seeking orders in the nature of prerogative relief, was not abandoned but was used the jurisdictional basis for the declaratory relief under s 75 of the Supreme Court Act. In other words, the work involved was, in any case, necessary.

25. Further, and in the alternative, the relief sought in prayer [1] of the Summons (and Amended Summons) would not have added substantially to the costs of the proceedings.

26. It may be that the other prayers did not add substantially to the costs of the proceedings or that the defendants’ preparation of them did not involve substantial costs, but that is a matter that may be dealt with between the parties or on assessment. For similar reasons, and because final determination of the correctness of the matter was not necessary, reliance upon reg 5(2) being beyond the power of Racing NSW ought not be the subject of a different order for costs.

27. In relation to the State of NSW, the State of NSW submits that it ought not be liable for any costs relating to work performed prior to its joinder. However, work done prior to its joinder that was useful in the agitation of the issues pressed and their determination are costs that may properly be compensated by an order for costs against the State of NSW.

28. The fact that the preparation was performed before the State of NSW was formally a party does not involve the proposition that the work performed was not reasonably necessary and appropriately incurred by the plaintiff. Again, however, the State of NSW ought not bear the plaintiff’s costs of those issues abandoned prior to its joinder.

29. In the circumstances, the Court makes the following orders:

1. Vacate Order 2 issued by the Court on 6 March 2018;

2. The plaintiff shall pay costs thrown away by the first, third and fourth defendants relating to the prayers for relief contained in prayers [2], [3], [4] and [6] of the Summons and/or Amended Summons filed in the proceedings;

3. The plaintiff pay the defendants’ costs of the hearing on 14 December 2017;

4. Otherwise, the first, third and fourth defendants pay the plaintiff’s costs of and incidental to the proceedings.

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Decision last updated: 20 April 2018