Clark v State of New South Wales

PARTIES : Peter Frederick Clark (Plaintiff) State of New South Wales (Defendant)

COUNSEL : Mr P Clark (Plaintiff in person) Mr D Aquilina (Defendant)

SOLICITORS : IV Knight, Crown Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20233/02 Peter Frederick Clark v State of New South Wales (No. 2)

JUDGMENT 1 JOHNSON J: On 30 June 2006, I gave judgment (Clark v State of New South Wales [2006] NSWSC 673) in which, pursuant to Part 13.4 Uniform Civil Procedure Rules, I dismissed the Further Amended Statement of Claim and ordered that the Plaintiff pay the Defendant's costs of the application. The reasons for those orders are apparent from the judgment delivered on that day. 2 Following the delivery of judgment, contact was made with my Associate seeking that the matter be relisted because of what were said to be outstanding costs issues. It is true that paragraphs 3 and 4 of the Notice of Motion filed by the Defendant on 14 December 2004 sought orders that the Plaintiff pay the Defendant's costs of these proceedings, and that the Plaintiff pay the Defendant's costs of District Court proceedings 1122/98. Those proposed orders sought by the Defendant were repeated in paragraphs 5 and 6 of the Amended Notice of Motion filed by leave on 24 August 2005. 3 My judgment of 30 June 2006 did not address those particular and consequential matters which, it must be said, occupied very little time at the hearing of the matter. 4 The Plaintiff has filed an Application for Leave to Appeal to the Court of Appeal from my judgment of 30 June 2006. The Summons for leave is returnable before the Court of Appeal on 18 September 2006. 5 In response to the Defendant's request to relist the matter for the purpose of these costs issues being considered, the Plaintiff submitted in writing that the issue should be deferred until after 18 September 2006. I declined to take that approach, and directed that the matter be listed before me today for hearing of the outstanding applications with respect to costs. 6 This morning, Mr Aquilina, counsel for the Defendant, informed the Court that the Defendant had formed the view recently that it was not, in fact, necessary to seek any further order from me with respect to the outstanding costs issues. There were two reasons for this.

The District Court Costs 7 Firstly, the costs of the District Court proceedings (which commenced as number 1122/98 but became 238/99), had been covered by an order made by his Honour Judge Nield in the Newcastle District Court on 21 August 2002 where his Honour ordered as follows: "1. I order that the Plaintiff's Statement of Claim filed 1 September 1998 as amended by the Second Amended Statement of Claim dated 17 February 1999 be struck out.

2. I order that the Defendant's costs, as agreed or if not agreed as assessed, be paid by the Plaintiff in the event that the Plaintiff is not successful in his Supreme Court claim against the Defendant."

8 It was submitted by Mr Aquilina that this self-executing order operated so that the Plaintiff, having been unsuccessful in his Supreme Court claim which I dismissed on 30 June 2006, was liable to pay the Defendant's costs of the District Court proceedings in their entirety. No submission has been advanced today by the Plaintiff, who appears in person before me, to a contrary effect. 9 Accordingly, I note that the order made by his Honour Judge Nield on 21 August 2002 operates so that the Plaintiff is liable to pay the Defendant's costs of the District Court proceedings. No further order is required from me in that respect.

The Supreme Court Costs 10 In relation to the costs of the Supreme Court proceedings generally, I note that the Supreme Court proceedings had their genesis in the District Court proceedings which were before his Honour Judge Nield. The history of the litigation between June 1997 and October 2004 is described shortly at paragraphs 10 and following of my judgment of 30 June 2006. 11 With respect to the costs of the Supreme Court proceedings generally, Mr Aquilina referred me to Part 42.20(1) Uniform Civil Procedure Rules which provides as follows: "If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed."

12 The operation of the rule is such that, as a result of my order of 30 June 2006 dismissing the proceedings generally, unless the Court otherwise orders, the Plaintiff must pay the Defendant's costs of the proceedings. The rule does not require a further order from this Court that the Plaintiff pay the Defendant's costs. That result will follow from the operation of the rules unless the Court orders otherwise. Accordingly, Mr Aquilina submitted that there was no need for a specific order from me with respect to the orders of the Supreme Court proceedings generally. 13 I invited the Plaintiff to make submissions with respect to that question. He indicated that it was an issue as to which, as a litigant in person, he had some doubt or uncertainty. He sought a form of judicial advice with respect to the question, in the form of "directions" from me purportedly under Part 1.13(1) Supreme Court Rules. The Plaintiff's submission is misconceived. It is not the function of a judge of this Court to give judicial advice to a litigant in person: Reisner v Bratt [2004] NSWCA 22 at [4]; Malouf v Malouf [2006] NSWCA 83 at [94]. 14 The Plaintiff has had a letter from the solicitors for the Defendant since 29 August 2006 which sets out the terms of Part 42.20 Uniform Civil Procedure Rules. In my view, the terms of the rule are clear. There is no doubt as to the operation of the rule. The question remains as to whether the Plaintiff wishes to make submissions that the Court should order otherwise in the circumstances of this case. 15 No submission has been advanced by the Plaintiff that some other order ought be made. In those circumstances, I am satisfied that the operation of Part 42.20 leads to the result that the Plaintiff must pay the Defendant's costs of the proceedings generally, which I dismissed on 30 June 2006. No further order is required from the Court for that result to follow. 16 I have mentioned a letter dated 29 August 2006 in which the solicitors for the Defendant wrote to the Plaintiff indicating their view with respect to costs of the District Court and Supreme Court proceedings. The Defendant's solicitors proposed to the Plaintiff that, in these circumstances, there was no purpose in the hearing proceeding today. It was proposed that, if the Plaintiff was of a similar view, I might be notified so that the hearing could, in effect, be cancelled. 17 In a reply dated 30 August 2006, the Plaintiff noted that it was the Defendant that asked for the matter to be relisted before me. The Plaintiff stated, "I think it best that the matter proceed on 31 August 2006 at 9.30 am before his Honour". 18 On that basis, the matter came before me this morning. Mr Aquilina summarised the Defendant's position and the Plaintiff adopted the position concerning the costs issues which I have indicated earlier in this judgment.

A Stay Application 19 The Plaintiff took the opportunity this morning to make oral application, without prior Notice of Motion, for a stay pending his application for leave to appeal. There is no doubt that a Judge of this Court has power to grant a stay pending an appeal, or application for leave to appeal, to the Court of Appeal. In circumstances where the orders made by me involved the dismissal of the proceedings and the making of a costs order, with consequential costs implications for the Plaintiff with respect to the District Court and Supreme Court proceedings generally, the Plaintiff seeks a stay to guard against any action being taken by the Defendant adverse to him whilst his application for leave to appeal to the Court of Appeal is on foot. 20 Given the shortness of time between now and 18 September 2006, it does not seem to me that there is any realistic prospect of steps being taken in that period by the Defendant adverse to the Plaintiff to enforce any orders for costs. There are processes required for the purpose of calculation and determination of sums of money to be paid pursuant to costs orders (see ss.367ff, Legal Profession Act 2004). Nevertheless, Mr Aquilina has obtained instructions that the Defendant will not seek to enforce any of the costs orders until 18 September 2006, and I have been so informed. 21 It seems to me that, in the light of that indication, any possible utility that there may be in the making of a stay order dissolves. I do not propose to order a stay. 22 The application for leave to appeal will be before the Court of Appeal on 18 September 2006. If the Plaintiff wishes to make any application for a stay to that Court, it will be a matter for him to do so, no doubt, on proper notice being given to the Defendant of his intention to do so.

Costs of Today 23 The Plaintiff makes an application that the Defendant pay the costs of today. He submits that it was the Defendant that sought that this matter be listed today, and thus such costs which have been incurred are the product of the actions of the Defendant. 24 I have already observed that it was the Defendant that requested that the matter be listed. On the face of it, there were consequential aspects touching costs which required some clarification. What is important is that the Defendant formed the (correct) view, prior to today, that the matter did not require a further hearing before this Court. The Defendant invited the Plaintiff to agree to that course. The Plaintiff refused. 25 The matter is before the Court today because the Plaintiff wished that to occur. There has been no submission advanced by the Plaintiff with respect to the costs issues which gave rise to the relisting. The sole issue raised by the Plaintiff today is the stay application of which there was no prior notice to me, and no Notice of Motion. In the circumstances, I do not propose to order the Defendant to pay the costs of today. 26 The Defendant has made an application that the Plaintiff pay the Defendant's costs of today, or at least that those costs be included in the orders which are already operating against the Plaintiff and in favour of the Defendant. I have set out in this judgment the history of events which have led to this listing. A number of things are clear. At no point has the Plaintiff acknowledged that the Defendant's approach to the costs issues was correct so that today's hearing was unnecessary. Prior to 29 August 2006, the Plaintiff submitted that this hearing should be postponed until after 18 September 2006 when he was before the Court of Appeal. That approach was opposed by the Defendant, and I determined that the application should proceed today. 27 Tellingly, on 29 August 2006, the Defendant's solicitors set out in clear and ample terms the reasons why, in their view, today's hearing was unnecessary. Those reasons were repeated before me today and, in my view, are entirely correct. The Plaintiff has not argued to the contrary. 28 Accordingly, the reason why this case is before me today, and has occupied more than an hour of Court time, is because the Plaintiff insisted on it. He took the opportunity today to make a stay application which, in my view, was not necessary. 29 In all the circumstances, I am satisfied that the justice of the case is such that the Defendant's costs of and incidental to the hearing today ought be costs which the Plaintiff should pay as part of the overall order for costs in the proceedings. 30 Accordingly, I note the matters which I have referred to in the judgment with respect to the costs of the District Court and the Supreme Court proceedings generally. No further order in that regard is required from me. I note that the Defendant will not take steps to enforce the costs orders before 18 September 2006. 31 I decline the Plaintiff's application for a stay. I order that the Plaintiff pay the Defendant's costs of and incidental to the hearing which has occurred today. **********

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