• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Affidavit evidence

14. Each of the parties filed affidavit evidence in relation to the Notice of Motion. The Defendant’s affidavit evidence comprised:

15. an affidavit of David Amentas, principal solicitor with carriage of the matter, affirmed 28 May 2026; and

16. an affidavit of Rachelle Moran, solicitor under the supervision of Mr Amentas, affirmed 13 April 2026.

17. The Plaintiff’s affidavit evidence comprised:

18. an affidavit of Kyle Kutasi affirmed 26 February 2026; and

19. an affidavit of Kyle Kutasi affirmed 29 May 2026 (the Second Affidavit).

20. So far as I am able to discern, the Plaintiff, through Mr Kutasi’s Second Affidavit, suggests the following. First, after the Plaintiff’s receipt, on or around 11 March 2022, of the UCC restriction, “the Plaintiff made repeated formal requests for review or revocation of the decision, which were either denied or ignored.”

21. Secondly, between December 2025 and late-January 2026, the Plaintiff and Defendant liaised directly. On 7 January 2026, the Defendant sent (directly to) the Plaintiff an email entitled “A review of conduct against council’s UCC policy”. The letter noted that during the period between October 2024 and September 2025, the Defendant received 134 instances of correspondence from the Plaintiff. The email concluded that the Plaintiff had “not adjusted [his] communication with [the Defendant] to comply with [the Defendant’s] directions set out in previous restrictions...”. The Defendant imposed six restrictions, noting, in its final paragraph, that the Plaintiff was entitled to one review of a decision to change or restrict his access to the Defendant’s services. Shortly stated, it is apparent to me that the very conduct which gave rise to the UCC restriction had continued unabated, which led to the restrictions being continued.

22. I also note the email sent by the Plaintiff to the Defendant on 8 January 2026, the first paragraph of which stated as follows:

“I write further to my earlier correspondence seeking clarification regarding the policy and procedural framework being applied to the current UCC review” (Emphasis added)

19. The use of the expression “current UCC review” confirms that it was the Defendant’s usual procedure to undertake reviews of its UCC determinations and that what occurred on 7 January 2026 was merely part of an ongoing process.

20. After the Defendant confirmed that it would continue to impose sanctions on the Plaintiff due to the unrelenting frequency of his communications, the Plaintiff did not abandon these proceedings. Rather, he was given further indulgences in the Court’s orders.

21. The Second Affidavit states at [25] that on 13 April 2026, one day before the 14 April 2026 directions hearing, Mr Kutasi was instructed to send an email to the Defendant’s solicitors confirming that the Plaintiff sought to discontinue the proceedings. The reason given by Mr Kutasi in the 14 April 2026 email he sent to the Defendant’s solicitors was that the utility of the proceedings had been “affected by [the Defendant] making a fresh UCC decision in February 2026 which has finally complied with the policy.” That day, Mr Kutasi appeared before the Registrar and confirmed the Plaintiff’s instructions to discontinue the proceedings. The Defendant did not consent to the Plaintiff’s position on the basis that the discontinuation was sought with no order as to costs.

Should the Plaintiff pay the Defendant’s costs?

22. In consequence of the Plaintiff wishing to discontinue the proceedings, I need not consider whether the proceedings ought be dismissed for want of due despatch. During the hearing, Mr Amentas indicated that the Defendant could not oppose such a discontinuance if that was what the Plaintiff wished to do. I also note that, during the hearing, Mr Amentas seemed to depart from that position and wished to obtain a dismissal “with prejudice”. The expression “dismissed with prejudice” is not one which reflects the language of the UCPR. I understand it to refer to a dismissal that would give rise to a res judicata. Such a dismissal is not sanctioned by the UCPR. A dismissal of this kind is one that can only be imposed by consent between the parties. In such circumstances the words “dismissed as heard and determined on a final basis” have on occasion been included in short minutes of order made by PLG Brereton J so as to create a res judicata. Whether they were effective in doing so is not a matter I need consider further. It is sufficient to merely note that, in circumstances where there has been no final determination of the matter, the Court has no power, by a dismissal, to prevent the party whose proceedings have been dismissed from bringing further proceedings in the absence of any other impediment to their doing so. This is confirmed by ss 90 and 91 of the Civil Procedure Act 2005 (NSW) (the CPA). Judgment, as contained in s 90 CPA, is the Court’s final determination of the rights and obligations of the parties in a matter. As set out in s 91 CPA, a dismissal does not prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings unless the Court dismissed the proceedings following a determination on the merits.

23. The question on which the parties joined issue in relation to this motion is one of costs. The Plaintiff has sought to avoid costs, relying upon the decision of McHugh J in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin). The Plaintiff argues that the Defendant’s determination on 6 February 2026, which was communicated by its letter the next day, was a supervening event which rendered these proceedings otiose. It is because of that argument that I have been required to address the history of this matter in some detail.

Consideration

24. Having considered the history of dealings between the parties, insofar as is revealed in the affidavit evidence, I reject the Plaintiff’s invocation of the principle in Lai Qin for a number of reasons. First, no evidence supports a finding by the Court that the Plaintiff’s election to discontinue had any connection with the Defendant’s review in January-February 2026. The Plaintiff’s solicitors gave no evidence on information and belief that the reason the Plaintiff elected to discontinue was motivated or caused by the Defendant’s review.

25. Secondly, if the review was related to the reason for the Plaintiff’s discontinuance, it is unclear why the Plaintiff did not discontinue proceedings earlier. The Defendant issued its first review letter on 7 January 2026 before finalising it on 6 February. The Plaintiff instructed his solicitors to discontinue the proceedings on 13 April 2026. In my opinion, it is more likely that the discontinuance was caused by Mr Anderson’s failure, as of 13 April 2026, to have filed any evidence in these proceedings, despite being given considerable latitude to do so.

26. Thirdly, the Second Affidavit at [30] concedes that the Plaintiff did not consider the UCC restriction decision issued on 6it s February 2026 to represent a lawful or complete resolution of the issues raised in these proceedings. This contradicts the Plaintiff’s claim that the review decision was instrumental in the discontinuance and rendered the proceedings otiose.

27. Fourthly, and most significantly, the review decision in January-February 2026 was not addressing earlier UCC restrictions imposed by the Defendant but was merely continuing those restrictions based upon the Plaintiff’s continued conduct in his interactions with the Defendant, as noted at [20] above, rather than the conduct which initially gave rise to the imposition of UCC restrictions. All the Defendant appears to have done in January-February 2026 was review whether the Plaintiff’s conduct had improved so as to justify the cessation or withdrawal of the restrictions. The Defendant considered that the Plaintiff’s conduct had not improved. In such circumstances, any suggestion that the review that was undertaken and published in January-February 2026 rendered the proceedings otiose, is fanciful.

28. For these reasons I consider that there has been no supervening event between the commencement of the proceedings and their intended discontinuance that entitles the Plaintiff to invoke Lai Qin.

29. The Plaintiff commenced these proceedings and now wishes to discontinue them. There is no reason why, in such circumstances, he ought not pay the Defendant’s costs of the proceedings. I should add that, even if the Plaintiff had not indicated his intention to discontinue the proceedings, his conduct in failing to prosecute the claim with due despatch was sufficient to justify the Court dismissing the proceedings as sought by the Defendant’s Notice of Motion and I will do so. Although in the circumstances there is little difference between a discontinuance and a dismissal, I have no motion before me seeking leave to discontinue. All that is before me is a motion for dismissal.

30. Despite the Defendant, in its Notice of Motion, only seeking an order that the Plaintiff pay the Defendant’s costs “as agreed or assessed”, it filed evidence in support of a gross sum costs order. The costs incurred have been articulated in the affidavit of Mr Amentas. That affidavit indicates that the solicitor-client costs incurred by the Defendant’s solicitors in defending these proceedings, comprising billed costs and work-in-progress, together with the filing fee, total $42,976.70. Mr Amentas, who is a highly-experienced litigation solicitor, opines that an assessment of these costs on an ordinary basis would apply a discount rate of 25%.

31. There is no evidence from an independent costs assessor, of the kind commonly relied upon, expressing an opinion as to the likely assessable costs, but I make no criticism in that regard. Engaging a costs assessor would simply have been incurring further costs in what has to date been a relatively modest expenditure of costs by the Defendant.

32. The Court may draw upon its experience of costs assessments in terms of the percentage reduction between solicitor-client costs and party-party costs. In this regard I propose to approach this matter on the basis that an assessment could reduce the solicitor-client costs by 30%. That would reduce the amount claimed by the Defendant to a sum of $30,083.69.

33. As to whether I will grant a gross sum costs order, the Court has a broad discretion in determining an application of this kind. The principles which inform that discretion were summarised by the Court of Appeal (Payne, McHugh and Free JJA) in Rahman v Rahman (No 2) [2025] NSWCA 266 at [61]–[64] as follows:

“[61] A gross sum costs order can be made any time before costs are referred for assessment. Section 98 confers a wide discretion on the Court. The principles were stated by Beazley JA (as her Excellency then was) in Hamod at [813]-[820], see also Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6] per Bell CJ, Kirk JA and Adamson JA.

[62] In Hamod, Beazley JA at [813] identified some of the factors which merit particular consideration, including the relative responsibility of the parties for the costs incurred, the degree of any disproportion between the issue litigated and the costs claimed, the complexity of proceedings in relation to their cost, and the capacity of the unsuccessful party to satisfy any costs liability.

[63] The power to award a lump sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213 at [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123; [1995] FCA 350; Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [28]-[29].

[64] A ‘broad brush’ approach is appropriate when a gross sum costs order is made. To require the same or a similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673 per O’Loughlin J; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].”

34. Although the power is discretionary, because a gross sum costs order is a special costs order, there must be a good reason to make it.

35. I am prepared to grant a gross sum costs order rather than putting the Defendant through what could be a lengthy costs assessment process regarding a relatively modest sum in circumstances where the Plaintiff has commenced and then discontinued proceedings against the Defendant. I am satisfied that the evidence allows me to fairly do so.

Orders

36. Accordingly, I make the following orders:

37. The proceedings be dismissed pursuant to r 12.7 UCPR.

38. The Plaintiff pay the Defendant’s costs on a gross sum basis in the amount of $30,083.69.

**********