Mehajer v Director-General of the Department of Local Government (No.2)
[2016] NSWSC 320
•30 March 2016
Supreme Court
New South Wales
Medium Neutral Citation: Mehajer v Director-General of the Department of Local Government (No.2) [2016] NSWSC 320 Hearing dates: On the papers Date of orders: 30 March 2016 Decision date: 30 March 2016 Before: Garling J Decision: (1) Order that Order 2 of 26 February 2016 be set aside.
(2) Order the defendant to pay the plaintiff’s costs of the proceedings.
(3) Order that each party pay their own costs of the Notice of Motion filed 7 March 2016.Catchwords: PROCEDURE – civil – notice of motion seeking an order for costs – where plaintiff failed to claim an order for costs in the originating process or seek an order for costs when judgment was delivered – whether it is in the interests of justice to make the order. Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure RulesCases Cited: Mehajer v Director-General of the Department of Local Government [2016] NSWSC 143
Office of Local Government v Salim Mehajer [2016] NSWCATOD 10Texts Cited: Not Applicable Category: Costs Parties: Salim Mehajer (Plaintiff)
Director-General of the Department of Local Government (Defendant)Representation: Counsel:
Solicitors:
M Finnane QC / R Graycar (Plaintiff)
B Tronson (Defendant)
Office of Local Government (Plaintiff)
Korn MacDougall Legal (Defendant)
File Number(s): 2016/34012 Publication restriction: Not Applicable
Judgment
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On 26 February 2016, I delivered judgment in these proceedings.
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I ordered that the decision of the NSW Civil and Administrative Tribunal (Occupational Division) dated 29 January 2016, being Office of Local Government v Salim Mehajer [2016] NSWCATOD 10, be set aside.
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I made no order as to costs.
Notice of Motion
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By Notice of Motion filed on 7 March 2016, the plaintiff, Mr Salim Mehajer, seeks an order that the costs order “… be varied so as to order that the respondent is to pay the appellant’s costs”.
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An order for costs was not claimed in either the Summons or the Amended Summons. The written submissions filed by the plaintiff concluded with a final paragraph which submitted that the “… appeal should be allowed with costs”.
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There were otherwise no submissions made, either in writing or orally, with respect to the question of costs. At the time the judgment was handed down, counsel who then appeared for the plaintiff did not seek an order for costs, nor did counsel seek to be heard with respect to the question of costs.
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The plaintiff now seeks that the Court exercise its discretionary power pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules (“UCPR”). That rule is in the following form:
“3A. If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the judgment under sub-rule (1), as if the judgment or order had not been entered.”
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The defendant accepts that the pre-conditions for reliance upon this rule have been satisfied.
Submissions
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The plaintiff submits that he was successful in the substantive proceedings and that the ordinary rule that costs follow the event should be applied so that he is entitled to an order that the defendant pay his costs of the proceedings. The plaintiff points to the provisions of r 42.1 of the UCPR, which provides that if the Court makes any order for costs, it is to order that costs follow the event “… unless it appears to the Court that some other order should be made”.
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The plaintiff submits that he is not required to specifically make a claim, in a summons or amended summons, for an order for costs: r 6.12(4) of the UCPR. Accordingly, he submits that any failure to make a specific claim for costs in a summons is not fatal to this application. The plaintiff also submits that “as is customary”, he expressly identified in written submissions the fact that costs were sought.
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The plaintiff submits that the defendant was thereby on notice of the application for costs, and that by reason of the reference set out above in the written submissions, the Court was also on notice that the plaintiff sought his costs.
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The defendant submits that, while it is content for the Motion to be dealt with on the papers, and in Chambers, the relief sought ought not be granted.
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The defendant submitted that in considering the exercise of its discretion, the Court should have regard to the principle of finality of litigation which, it submitted, was a significant consideration in the proceedings. The defendant submitted that the plaintiff had five opportunities to raise the issue of costs, only one of which had been used. The defendant submitted that, even in that case, the question of a claim for costs was dealt with in a most cursory way.
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In particular, the defendant pointed to the failure of counsel to make any application upon delivery of judgment with respect to an order for costs.
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Ultimately, the defendant submitted that the plaintiff had not demonstrated any good reason why the principle of finality of litigation should be overridden in the present case, and that accordingly there was no basis upon which to vary the costs order.
Discernment
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Rule 42.1 of the UCPR, in its ordinary application, would have resulted in the defendant being ordered to pay the plaintiff’s costs. There was no reason advanced then, or now, by the defendant for the Court to have made any different order.
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As the judgment discloses, the absence of any claim for an order for costs in the Summons, in the context that no order for costs had been made in the Tribunal below, was the determinative factor for the Court declining to make a costs order.
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Ordinarily, although there is no obligation on a plaintiff to seek an order for costs in an originating process, the Court would expect that such an order would be specifically adumbrated. In that way, the Court is on clear notice that such a claim is being made, as is the other party to the proceedings.
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I reject the plaintiff’s submission that it is customary in this Court for a party to only make a claim for costs only in written submissions. That is not the custom, nor is it a practice which is to be encouraged.
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Here, the submissions seeking an order for costs were perfunctory, and did not seek to put any argument or submission at all with respect to an order for costs. As well, the failure of counsel to seek an order for costs at the time the judgment was delivered reinforced the impression that no order for costs was being sought by the plaintiff.
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The course of conduct followed by the plaintiff, of failing to clearly identify and articulate a claim for an order for costs in the originating process, sitting by at the time judgment was delivered, and then seeking a variation of the order by Notice of Motion filed afterwards, is to be deprecated. It does not fulfil the statutory obligations placed on a party by s 56 of the Civil Procedure Act 2005.
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That said, had there been a clearly articulated claim for costs, there is no reason to think that the Court would not have awarded costs to the plaintiff.
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The plaintiff succeeded in his claim. It is ordinarily fair and just, and in the interests of justice, that costs follow the event.
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The exercise of the Court’s discretion with respect to an application under r 36.16 of the UCPR is one which needs to be approached by determining what the interests of justice require.
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In my view, the interests of justice do not require the plaintiff to be penalised for the failure to clearly articulate a claim for costs. On the contrary, the interests of justice require that the ordinary result would follow. The defendant should pay the plaintiff’s costs of the proceedings in this court.
Orders
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I make the following orders:
Order that Order 2 of 26 February 2016 be set aside.
Order the defendant to pay the plaintiff’s costs of the proceedings.
Order that each party pay their own costs of the Notice of Motion filed 7 March 2016.
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Decision last updated: 30 March 2016
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