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

1. 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.

2. 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.

3. 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.”

4. For their part, the defendants sought the usual costs order under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), contending that there was no basis for any contrary order: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97; [1998] HCA 11; Latoudis v Casey (1990) 170 CLR 534 at 566-567; [1990] HCA 59. That ordinarily requires some relevant misconduct in the proceedings to be established.

5. The onus fell on Mr Vassallo to justify a departure from the ordinary rule, but what he advanced was incapable of doing so. The March judgment was concerned with his application for leave to file an amended pleading and if that was refused, the question of whether the proceedings should be struck out. The results of those proceedings provided no proper basis for any departure from the usual order.

6. I am satisfied that there was nothing “out of the ordinary” about these proceedings, what arose to be determined on the motion, or how the defendants pursued their case, which would warrant any departure from the general rule that costs follow the event. That requires Mr Vassallo to bear the defendants’ costs, having failed as he did on the case he advanced.

7. In September 2023, Chen J had struck out Mr Vassallo’s amended statement of claim, for thoroughly explained reasons, but gave him leave to file an amended summons: Vassallo v Deitz [2023] NSWSC 1121. Chen J’s judgment clearly put Mr Vassallo on notice of the problems he faced in repleading.

8. Given how Mr Vassallo sought to replead his case, I concluded that, unrepresented as he was, he misunderstood fundamental legal concepts, principles and legislation on which his case necessarily turned. That led to the conclusion that the proposed summons still did not disclose a reasonable cause of action, or comply with applicable Rules. In the result the leave he sought to pursue the defendants, who are Council employees and a Local Court Magistrate, had to be refused.

9. I also concluded that the proceedings had to be dismissed, Mr Vassallo still not having complied with the essential pleading requirements Chen J had explained. I was also satisfied to a high degree of certainty about the ultimate outcome of the proceedings, if they were allowed to go to trial on the proposed pleading.

10. In the result, I am also satisfied that the defendants are entitled to the usual costs order which they seek. Despite what Mr Vassallo advanced by his submission, that is what justice requires in the circumstances which now arise to be considered, he not having established any proper basis, as he must, for departure from the usual order.

11. That was certainly not established by the views he expressed in his submission.

Orders

12. For these reasons I order that Mr Vassallo pay the defendants’ costs of the proceedings, as agreed or assessed.

**********

Decision last updated: 22 April 2024