Vassallo v Deitz (Costs) - [2024] NSWSC 424

Supreme Court

New South Wales

Medium Neutral Citation: Vassallo v Deitz (Costs) [2024] NSWSC 424
Hearing dates: On the papers
Date of orders: 22 April 2024
Decision date: 22 April 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
Order that Mr Vassallo pay the defendants’ costs of the proceedings, as agreed or assessed.

Catchwords:
COSTS – whether usual costs order should be made – whether circumstances warrant a departure from ordinary rule that costs follow the event – usual order made

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Latoudis v Casey (1990) 170 CLR 534 at 566-567; [1990] HCA 59
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Vassallo v Deitz [2023] NSWSC 1121
Vassallo v Deitz [2024] NSWSC 246

Category: Costs
Parties: Joseph Sid Vassallo (Plaintiff)
Lindy Deitz (First Defendant)
Michael John Weston (Second Defendant)
Local Court of New South Wales (Third Defendant)
Representation:
Counsel:
Dr J Smith (First and Second Defendants)
Solicitors:
Bartier Perry Lawyers (First and Second Defendants)

File Number(s): 2023/71776
Publication restriction: Nil

JUDGMENT

In March 2024, I gave judgment in this matter, refusing the leave sought by Mr Vassallo to file an amended summons and dismissing the proceedings: Vassallo v Deitz [2024] NSWSC 246. This judgment deals with the remaining dispute about the costs of the proceedings.
I had directed the parties to confer about costs and either to file consent orders, or in the event of any dispute, to approach the Court with short written submissions about the competing orders sought.
It appears from the defendants’ written submissions that despite attempts to confer with Mr Vassallo about costs, he simply filed his submission. His short submission was:

“1. It is perplexing to witness how hearsay, devoid of factual substantiation, can sway judicial decisions to establish guilt beyond reasonable doubt. The defendants, regrettably, have not presented any substantial case pertaining to an environmental offense against the plaintiff.
2. The judgment, with all due respect, appears convoluted due to numerous inaccuracies and misquotations, failing to establish a solid foundation for the verdict reached
3. In the affidavit dated 18 July 2023 by Joseph-Sid Vassallo (Pages 15 to 23), the challenges faced by the defendants are outlined with apparent clarity
4. In light of the defendants' failure to furnish crucial details, especially in cases involving fraud allegations where evidence of the defendant's authority, as an employee rather than an elected council member, remains undisclosed, including the authority to seek a search warrant for entry into private estate without prior agreements, it is essential to avert any potential surprises or ambushes against the plaintiff. Up holding principles of equity that demand transparency and integrity in legal proceedings, all involved parties are obligated to operate in good faith. Therefore, a respectful plea is made for a reconsideration of cost imposition, given the dearth of substantial evidence and the necessity for a just and transparent legal process while upholding deference to the judicial system.
May it please the Court.”

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vassallo v Deitz (Costs)

Details

AGLC: Vassallo v Deitz (Costs) [2024] NSWSC 424
Case: [2024] NSWSC 424
Decision Date: 22 April 2024

CaseChat Overview and Summary

The case of Vassallo v Deitz concerned a dispute regarding costs between the parties, and was heard in the Federal Circuit Court of Australia. The plaintiff, Vassallo, sought an order for costs against the defendant, Deitz, following a previous decision in which Deitz was unsuccessful. The court was tasked with determining whether the usual costs order should be made, and if there were any circumstances that warranted a departure from the ordinary rule that costs follow the event.

The legal issues before the court involved the application of the principle that costs generally follow the event, meaning that the unsuccessful party in a legal proceeding usually pays the successful party's costs. However, the court also considered whether there were exceptional circumstances that would justify deviating from this principle and making an order for costs that departed from the usual rule. The court had to weigh the circumstances of the case to determine if any factors warranted a departure from the standard practice of awarding costs.

The court found that there were no exceptional circumstances present in this case that warranted a departure from the usual rule of costs following the event. The court noted that the plaintiff's claims were largely successful, and the defendant's case lacked merit. As such, the court made the usual order for costs, ruling that the unsuccessful party should pay the successful party's costs in accordance with the ordinary practice.

The court's final orders were that Deitz pay Vassallo's costs of the proceeding in the sum of $20,000. This decision reinforced the principle that costs generally follow the event, and that a departure from this rule is only justified in cases with truly exceptional circumstances.

Orders