Lin v Commissioner of Victims Rights (Costs)

[2024] NSWSC 574

Supreme Court

New South Wales

Medium Neutral Citation:

Lin v Commissioner of Victims Rights (Costs) [2024] NSWSC 574

Hearing dates:

On the papers

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Order that Ms Lin pay the Commissioner’s costs of these proceedings, fixed at the gross sum of $7,354.96.

Catchwords:

COSTS – usual costs order – whether discretion to make a specified gross sum costs order should be exercised – principles applicable to order made under Civil Procedure Act s 98(4)(c) – where sum sought had been fairly calculated and a discount had been applied – where assessment likely to be costly, and involve further unnecessary expense, delay and aggravation – gross sum costs order made

Legislation Cited:

Civil Procedure Act2005 (NSW), s 98(4)(c)

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Gabrielle v Abood (No 4) [2023] NSWCA 100

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84

Lin v Commissioner of Victims Rights [2024] NSWSC 423

Category:

Costs

Parties:

Huai Ning Lin (Plaintiff)
Commissioner of Victims Rights (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)

Representation:

Counsel:
E Dunlop (Defendants)

Solicitors:
Crown Solicitor’s Office (Defendants)

File Number(s):

2023/423037

Publication restriction:

Nil

JUDGMENT

1. In Lin v Commissioner of Victims Rights [2024] NSWSC 423 I refused the orders Ms Lin sought and dismissed the proceedings, she having unsuccessfully challenged a restitution order made against her under the Victims Rights and Support Act2013 (NSW), in the Civil and Administrative Tribunal of New South Wales and having failed to establish a basis upon which its orders could be set aside and the restitution order reversed.

2. The appropriate costs order remains in issue.

3. The Commissioner sought a fixed costs order for the gross sum of $7,354.96. There can be no question that the Court has power to make such an order: s 98(4)(c) of the Civil Procedure Act2005 (NSW). The Commissioner relied on the 6 May 2024 affidavit of Ms Mattes, an Acting Director/Special Counsel employed in the office of the Crown Solicitor, to establish an evidentiary basis for the order sought.

4. Ms Lin resisted that order, submitting that the Crown Solicitor is not entitled to professional fees, only filing fees and incidental costs. She cited no authority to support that submission, which also overlooks that it is the Commissioner who seeks the costs order, the Tribunal having entered a submitting appearance.

5. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42.1. The principal purpose of a gross costs order is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [15].

6. Such an order can give effect to the overriding purpose of the Act, the just, quick and cheap resolution of the real issues in the proceedings and the obligation to ensure that the issues between the parties are resolved in such a way that the cost to them is proportionate to the importance and complexity of the subject-matter in dispute: ss 56 and 60 discussed in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3]. Such orders providing an opportunity for ongoing litigation about “non-essential issues” to be resolved with as little technicality and expense as reasonably practicable.

7. The power to make such an order is discretionary, but to be exercised whenever the circumstances warrant its exercise. That is when the Court considers that it can do so fairly between the parties, having sufficient confidence in arriving at an appropriate sum on the materials available and typically applying a discount, without undertaking a detailed examination of the kind that would be appropriate on taxation or formal costs assessment: Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6].

8. Account is also to be taken of the fact that if assessed on the ordinary basis, the usual outcome is that the costs recovered represent a proportion in the range of 60 to 85% of the total costs incurred. With the result that the Court should apply an “impressionistic” or “broad brush” approach in applying a discount to reflect that reality: Ahern at [42].

9. It is also appropriate to exercise the discretion where it appears that the party who has to pay the costs would not be able to meet the liability of a costs order following assessment: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [21], [28]-[30].

10. Ms Mattes’ affidavit explains how the costs sought in the proposed order had been calculated on a “costs recovery basis”, on the basis of rates substantially lower than those for practitioners of equivalent seniority in the private sector. Total professional fees had been calculated in accordance with a scale of hourly rates arrived at in accordance with the NSW Government’s applicable “Core Legal Work Guidelines”. They had been dealt with in three invoices which had been issued, which together with counsel’s fees billed, amounted to $9.858.80.

11. Ms Mattes explained work which had been undertaken, including as the result of unsuccessful attempts to reach agreement with Ms Lin about various procedural matters and costs which had not been sought to be recovered from her. Ms Mattes also explained why she considered that the costs identified had been reasonably incurred and would be recoverable on assessment.

12. The fees pursued in the order have been calculated as 80% of what could be sought to be recovered, that totalling $5,314.96. Counsel’s fees which had been paid totalled $2,040.00, Ms Dunlop having been engaged at the “Crown rates” Ms Mattes also explained. What Ms Dunlop was entitled to under her costs agreement had in fact been greater.

13. Ms Mattes’ evidence was not challenged. There is no reason to doubt it.

14. Given what arose to be considered in these proceedings, I am satisfied that it accords with the dictates of justice and the requirements of the Civil Procedure Act to now exercise the Court’s discretion to make the gross costs order sought.

15. That can only reduce the costs which Ms Lin might otherwise have to bear, if the costs incurred in successfully resisting her claims were to be assessed.

16. That is because I consider that there are in the circumstances which arise for consideration, no reason for departure from the ordinary rule that costs should follow the event in this case. Nor did she seek any departure from that rule. That would usually be an order that Ms Lin bear the Commissioner’s costs, as agreed or assessed.

17. On the evidence it must be accepted that an assessment is likely to result in a greater costs order than that which the Commissioner seeks. But it would also involve even further costs being expended on the assessment. The evidence also establishes that the calculation of the gross sum pursued had appropriate regard to the applicable principles, including the need to apply an appropriate discount in arriving at a gross sum.

18. In the result I am satisfied that justice requires that the order sought should be made, any assessment likely not only to be costly, but also to involve further unnecessary expense, delay and aggravation.

Orders

19. For these reasons I order that Ms Lin pay the Commissioner’s costs of these proceedings, fixed at the gross sum of $7,354.96.

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Decision last updated: 16 May 2024