Clark v State of New South Wales

Judgment

Judgement was given in this matter in Clark v State of New South Wales [2016] NSWSC 808). I there said (at [139] - [141]): "139 The usual order under the Rules is that costs, as agreed or assessed, will be ordered in favour of the successful party. In the case of an unrepresented litigant, a costs order is usually confined to an order for disbursements. 140 In this case that would be a costs order against Mr Clark in respect of MFI 4 and MFI 6 and an order in his favour, in respect of disbursements connected with his pursuit of MFI 5. 141 I will hear the parties if they seek a departure from the usual orders."
Mr Clark opposed any costs orders being made in favour of the defendants and sought a review of the decision, as to what he submitted was a factual error. While that application was not made in accordance with the requirements of the Uniform Civil Procedure Rules 2005 (NSW), the other parties did not oppose the matter being dealt with, as if he had made an application for review by way of motion.

Costs

Mr Clark submitted that no costs order should be made, given the nature of the proceedings; his status as a prisoner; his age and financial circumstances; that the other parties were not named defendants to the proceedings; that they had been allowed to make complex written and oral submissions to assist the Court; that their participation in the proceedings had not been justified; that the same conclusions would have been reached, had they not been given the leave they had sought; and that it would be contrary to the scheme of the Felons Act to make the orders sought.
The 8th defendant submitted that it, the State and Mr Clark having been granted leave to appear, as the statutory scheme permitted, while there was a basis for the making of a special costs order for indemnity costs against Mr Clark, given the conclusions reached that his proposed claims against it involved an abuse of process and had no prospect of success, Mr Clark's submissions were incapable of providing a basis for refusing it the benefit of the usual order under the Rules.
The State's position was that it was relevant that the Felons Act made no special provision for costs; that the proposed order reflected the parties' respective success and that the judgment given reflected the assistance which flowed from the respective parties, given the leave to appear for which the legislative scheme provided. It was not open to conclude that the matters raised would have been drawn to the Court's attention without that leave. In the result, the proposed costs orders should be made.
In his reply Mr Clark relied on Clark v State of New South Wales [2015] NSWSC 246 where no order as to costs was made by Hamill J. There were no reasons given for that order made in a case which concerned, his Honour explained, a claim for relief predominantly aimed at compelling the State to provide Mr Clark with particular items he required to pursue and prepare for a number of court cases in which he is, or was, involved. In dismissing the summons, his Honour noted at [55] that the submissions advanced by Mr Clark "constitute an invitation to interfere with the administration of the prison system in circumstances where such interference has been repeatedly eschewed by the courts and where I have insufficient information upon which to base any relevant finding".
This is a different case, which must be decided on its own facts, in light of what justice demands, in the face of Mr Clark's largely unsuccessful further pursuit of the leave which he sought. While Mr Clark reiterated his submissions as to the consequences of the incompetence and deceit on the part of his legal representatives he alleges he was the victim of, and the errors he complains of in my and other judgments there dealt with, that is not a proper basis for departure from the usual costs order.
The Court's costs discretion, in my view, should be exercised in the way foreshadowed, notwithstanding Mr Clark's circumstances and what he claims to be his limited means, about which he led no evidence. Undoubtedly, the nature of the proceedings must be born in mind, when the question of costs is considered, the Felons Act limiting as it does an offender's right to pursue litigation against other parties without the Court's leave.
In this case, nevertheless, given what was in issue in the proceedings and the reasons for the leave given to both Mr Clark and the other parties to appear to be heard on the application, discussed in my earlier judgment, I am satisfied that there is good reason for not departing from the usual costs orders under the Rules.
In the result, I order that Mr Clark is to bear the other parties' costs, as agreed or assessed, in respect of MFI 4 and MFI 6 and the State is to bear the disbursements he incurred in connection with his pursuit of MFI 5.

At a glance

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Judgment (4 paragraphs)

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Legislation Cited (2)

Cases Cited (5)