Datta v AAI Limited trading as GIO & Ors (No 2)

Representation: Counsel:
L D Robison (First Defendant)
N Simone (Second Defendant)
S Maybury (Third Defendant)
K Holcombe (Fourth Defendant)
Q M Noakhtar (Fifth Defendant)
Solicitors:
Hall & Wilcox (First Defendant)
Mills Oakley (Second Defendant)
DLA Piper (Third Defendant)
Moray & Agnew (Fourth Defendant)
Barry Nilsson Lawyers (Fifth Defendant)

File Number(s): 2023/224777

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: On 26 February 2025, the Court, as presently constituted, dismissed the proceedings summarily and made an order that the plaintiffs pay the defendants’ costs of and incidental to the proceedings, including the costs of motions.

2. The Court allowed any party seeking a special or different order for costs to do so within 14 days of the date of judgment and allowed for a response within a further 14 days.

3. On 4 March 2025, the plaintiffs in these proceedings filed submissions for a special or different order as to costs. Unfortunately, this and the reply submissions were not brought to the attention of the Court, as presently constituted, until more recently. Nevertheless, the Court is required to deal with an application by the plaintiffs that the Court vary the order that the plaintiffs pay costs because, amongst other reasons, the plaintiffs are impecunious.

4. The plaintiffs rely on a number of factors. First, they recite the fact that they are self-represented and submit that they are unable to afford lawyers. The submission asserts that the Court recognised that their proceedings had merit by referring the plaintiffs to the pro bono panel.

5. The plaintiffs provide, in their submissions, particulars of their inability to afford to pay the costs, stating that they earn, together, $1,079 per week. This is received from workers compensation, either as compensation itself or for the provision of care.

6. Further particulars are provided by reciting that one of the plaintiffs is on workers compensation and requires lifelong assistance and is required to meet significant medical and out of pocket expenses.

7. The plaintiffs also submit that they sought to conduct the proceedings in a manner which avoided legal costs as best they could and cited as an example the fact that they were self-represented. Apart from the foregoing, the plaintiffs argue that they acted in good faith to bring the proceedings before the Court, and they have issues which arise from the New South Wales Compensation Court and which issues remain unaddressed.

8. Annexed to the plaintiffs’ submissions are records relating to the workers compensation aspects, patient cards relating to medical attention in India and medical records/invoices and, lastly, invoices being tuition fees for the tuition of their child. Those tuition fees consist of a transport fee of INR1,700.00 (INR are Indian Rupee) and monthly tuition fees of INR2,300.00. No material has been presented to the Court as to whether there is public education available at no cost in India. An amount of INR4,000 per month is equivalent to approximately AUD$72 per month.

Substantive judgment

9. The substantive judgment in the matter, [1] as stated, was delivered on 26 February 2025. It granted applications by each of the defendants to dismiss the proceedings summarily. It did so on the basis that the Statement of Claim filed by the plaintiffs did not disclose a reasonable cause of action and that the proceedings were taken as an abuse of process.

10. The abuse of process arose as a consequence of the existence of extant and binding determinations on issues of fact and law which were sought to be the subject of an inconsistent judgment by the Court. The Workers Compensation Commission had determined the factual and legal issues (or most of them) sought to be agitated by the plaintiffs.

11. The first defendant in these proceedings was the insurance company relevant to the workers compensation proceedings. The third and fifth defendants were counsel advising on the litigation. The Statement of Claim raised serious allegations of dishonesty and recklessness without pleading any facts that could possibly give rise to such an inference or conclusion.

12. However, the success of the motion to strike out the proceedings did not depend upon a mere irregularity or inappropriate wording in the pleading. The pleading itself and the claims made did not raise any issue that could be litigated in the manner suggested. While the plaintiffs may have had the capacity, albeit out of time, to appeal the decisions of the relevant personal injury tribunals, the matters said to be agitated are matters exclusively within the jurisdiction of those tribunals.

13. Further, where there has been a deterioration in the condition of an injured worker, additional applications may be made to cover the damage associated with that deterioration pursuant to the workers compensation legislation. Again, these are applications determined by the Personal Injury Commission.

Costs

14. Apart from the Court’s inherent powers to award costs as a Court of general jurisdiction in both equity and common law, the capacity and discretion to award costs is granted by the provisions of s 98 of the Civil Procedure Act 2005 (NSW). The provision prescribes that costs are in the discretion of the Court and that the Court has full power to determine by whom, to whom and to what extent costs are to be paid.

15. Costs are not awarded as a punishment. They are a means of compensating a party who enforces a right or a party who defends against an assertion of right for the costs of so doing.

16. No exercise of discretion is ever wholly unconfined. The exercise of discretion to order costs cannot be undertaken for reasons extraneous to the purpose of the legislation and the administration of justice.

17. The exercise of discretion to award costs is required to be exercised judicially. The discretion cannot be exercised arbitrarily or capriciously, nor for reasons extraneous to the objects of the legislation. [2]

18. When considering the exercise of a discretion such as that conferred by s 98 of the Civil P**rocedure Act, the Court must bear in mind the overriding purpose of the legislation which is to facilitate the just, quick and cheap resolution of the real issues between the parties.

19. In this case, the conduct of the plaintiffs, whether minimising costs or otherwise, was to undertake proceedings which had no merit and which were required to be dismissed summarily. The conduct of the plaintiffs required the defendants to protect their rights and interests and, as a consequence, to occasion costs. It is appropriate and just for the costs occasioned by the conduct of the plaintiffs to be compensated.

20. Whether the Court, as a private opinion or as a matter of sympathy, understands the application of the plaintiffs is not a matter that goes to principle in determining costs. The Court is required to exercise its jurisdiction in a manner that applies the principles of equal justice. Rich and poor, where each is relevantly equal, are required to be treated equally.

21. Ordinarily, costs follow the event. The party that is successful is ordinarily entitled to its costs, unless some conduct on its part, or some other relevant factor, might disentitle it to those costs.

22. Even if the plaintiffs are currently impecunious, it cannot be assumed that the plaintiffs will continue to be impecunious and will never have the means to pay the debt occasioned by the order for costs. [3]

23. Nothing in the submission of the plaintiffs, nor in the material attached to the submission, is such as to occasion a departure from the ordinary rule.

24. As a consequence, the Court will not vary the order made on 26 February 2025, except to vacate the leave to file further submissions.

25. The Court makes the following orders:

26. The application for a special order for costs dismissed.

27. Orders (3) and (4) of the orders issued on 26 February 2025 in this matter are vacated.

**********

Endnotes

Datta v AAI Limited trading as GIO & Ors [2025] NSWSC 112.

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [63]; Re Coldham ex parte Brideson (1989) 166 CLR 338; [1989] HCA 2.

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [34]-[35].