Macatangay v State of New South Wales

[2006] NSWSC 517

CITATION:	Macatangay v State of New South Wales [2006] NSWSC 517
HEARING DATE(S):	5 April 2006
JUDGMENT DATE :	5 April 2006
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	Reserve the costs of the motions to be determined at the time when these proceedings themselves are determined
CATCHWORDS:	COSTS - costs of motion for summary judgment - costs for motion to strike out statement of claim - whether indemnity costs appropriate - self-represented litigant - claim in damages
PARTIES:	Miguela Alvarez Macatangay (Pltf) State of NSW (Def)
FILE NUMBER(S):	SC 20144/05
COUNSEL:	Plaintiff in person M Burns (Def)
SOLICITORS:	Plaintiff in person Hicksons Lawyers (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 5 APRIL 2006

20144/05 MACATANGAY v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: In this matter I heard and determined the plaintiff’s motion for summary judgment on 14 February 2006. On that day I determined that the motion should be dismissed. On the same day I heard the defendant’s motion that the statement of claim which the plaintiff had filed be struck out. I upheld that motion but granted the plaintiff leave to file an amended statement of claim. I reserved the question of costs of the motions on that day.

2 The defendant asks that I now determine the application which it makes for the costs of the motions. Since I determined the two motions, the plaintiff has filed an amended statement of claim pursuant to the leave which I granted her. Accordingly, it would seem that the matter is to be pursued, but pursuant to the amended statement of claim. In those circumstances I have been asked to consider determining the question of costs in relation to the motions.

3 For the reasons which I indicated on the previous occasion, the plaintiff’s motion for summary judgment was refused and the motion dismissed. The normal order for costs would be that costs follow the event. Nothing has been put before me which would suggest that I should do other than make the usual order in relation to that motion.

4 The defendant seeks an order for indemnity costs. I do not think such an order would be appropriate. The plaintiff brings the proceedings without apparent legal advice or assistance and it would seem from the submissions placed before me on the previous occasion and those advanced this morning that she may be having some difficulty in understanding the rules which apply to the bringing of such a motion. However, that does not mean that if the defendant has been put to expense unreasonably and without legal foundation it should not receive an order for costs.

5 In relation to the defendant’s motion, for the reasons I indicated on the previous occasion, that motion was upheld. The plaintiff accepted that the statement of claim which had then been filed should be struck out provided leave was granted to replead.

6 This matter has been brought by the plaintiff who has a strong belief – in relation to which, of course, I have absolutely no view – that she has suffered a significant wrong at the hands of the Department of Education and Training. She is determined to pursue a claim in damages in this Court. In so doing, she accepts the burden of pleading and proving her case and must, of course, also accept that if she fails, the defendant is entitled to ask for and, if the circumstances are otherwise appropriate, have the usual order made in relation to the costs of the proceedings.

7 Nothing has been put before me to indicate that it would not be appropriate for me to make orders for costs against the plaintiff in relation to both motions. The plaintiff failed in relation to both of them and in those circumstances the usual order would normally be appropriate. However, having regard to where this litigation presently rests, with no doubt further difficulty to be faced in relation to the nature of the pleading in the case which the plaintiff is to pursue and against the possibility that she may at some later stage be advised by lawyers or, perhaps, represented by the same, I believe it appropriate at this stage that I should not make an order for costs.

8 The views I have indicated are preliminary but, in my view, it would be better if the question of costs was determined in light of the overall fate of the suit and, if it is the case, when the plaintiff has had an opportunity to put submissions through a legal representative.

9 Accordingly, what I will say at this stage is that I will further reserve the costs of the motions to be determined at the time when these proceedings themselves are determined.

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