Eedra Zey (formerly using the pseudonym Eva Williams) (No. 3) v State of New South Wales

Background to the defendant's costs application

1. At the commencement of the substantive hearing, on 26 February 2024, the plaintiff appeared and presented a damages schedule by which she sought to obtain a verdict and judgment in her favour for $350,000.
2. The plaintiff's claim against the defendant raised seven counts of intentional torts allegedly committed by police officers. She claimed compensatory damages, aggravated compensatory damages, and exemplary damages.
3. On 19 July 2024, judgment was entered in favour of the plaintiff for only nominal damages in the amount of $1.00 in relation to a concededly short period of trespass to her property in circumstances which she had provoked. In that judgment, the balance of the plaintiff's claims were rejected. That result was based on credit findings and an assessment on the merits of the individual claims that she made: Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales (No. 2), supra, at [86] - [103]; [135] - [226].
4. Prior to the filing of the plaintiff's statement of claim, in correspondence, the defendant conceded the plaintiff's claim of trespass to her property, albeit for a very brief period. At that time, the defendant offered what was on any reasonable view, generous compensation in the form of a Calderbank offer in the sum of $5,000, which the plaintiff refused to accept.
5. In the lead up to the hearing, the plaintiff also subsequently refused to accept a series of valid offers of compromise that complied with the requirements of r 20.26 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") in the amounts of $25,000 and $30,000.
6. After the entry of the principal judgment, the residual question of costs was left to be determined after hearing from the parties according to a timetable for submissions which was later amended. The defendant has made costs submissions which referred to the plaintiff's disentitling litigation conduct which characterised her non-acceptance of a series of reasonable offers made by the defendant as having been unreasonable in the circumstances.
7. The defendant submitted it was the "true" successful party in the proceedings because the plaintiff only obtained a judgment for nominal damages for trespass. The defendant took that stance because, substantively, the plaintiff's claims have not succeeded, and the single count of trespass upon which she did succeed had been conceded by the defendant from the outset, except as to quantum. That concession by the defendant was made on the pleadings, and in settlement correspondence that passed between the parties before the plaintiff's proceedings were filed.
8. The plaintiff's award of damages of $1.00 was based on a finding of a very brief period of trespass on Saturday 21 September 2019 by two police officers who, in the public interest and in accordance with their public duties, went to her premises for the lawful purpose of seeking her assistance to abate a public nuisance which she had created by allowing her vehicle to be left in a position of obstruction and disruption to vehicular traffic at the access and egress point of a school building site.
9. At the substantive hearing, the conceded trespass by police officers, lasting about three minutes, was found to have been of a trifling nature. That was because they only became trespassers after the plaintiff had asked them to leave, and they left reasonably promptly after recognising that they were unable to secure her civic co-operation to move her vehicle, which then had to be towed away.
10. Those findings called for the application of the maxim de minimis non curat lex.

Defendant's offers of settlement

1. The historical correspondence and costs material relied upon by the defendant shows that the plaintiff had declined to accept a series of offers made by the defendant, as follows: 1. On 26 February 2022, prior to the filing of proceedings, the defendant made a Calderbank offer in the amount of $5,000. That offer was made in response to a request made by the plaintiff on 10 January 2022 for the defendant to make an offer of settlement; 2. On 6 July 2023, the defendant served an offer of compromise pursuant to UCPR r 20.26 in the amount of $25,000; 3. On 29 November 2023, the defendant served a further offer of compromise pursuant to UCPR r 20.26, again in the amount of $25,000; 4. On 20 February 2024, the defendant served an offer of compromise pursuant to UCPR r 20.26 in the amount of $30,000. That offer was made in the context of an imminent hearing which was due to commence on 26 February 2024.
2. On 31 July 2024, pursuant to orders made on 17 July 2024, invoking s 98 of the Civil Procedure Act 2005 (NSW), the defendant filed its costs submissions together with a notice of motion and an affidavit in support seeking a series of alternatively framed indemnity costs orders against the plaintiff on a specified gross sum basis in light of the plaintiff's sequential non-acceptance of the above offers, and in light of the plaintiff's disentitling litigation conduct by which she had disengaged from her litigation she had commenced without a satisfactory explanation.
3. Pursuant to case management orders made on 17 July 2024 and served on the plaintiff, as amended by an order made in chambers on 26 July 2024, her costs submissions in reply to the defendant's costs submissions were due to be filed on 15 August 2024. The plaintiff has not filed any such submissions.

Orders sought by the defendant's notice of motion seeking costs

1. The defendant's notice of motion filed on 31 July 2024 seeks the following cost orders in the alternative: 1. Pursuant to s 98(1) of the Civil Procedure Act 2005, the plaintiff is to pay the entirety of the defendant's costs of the proceedings on an indemnity basis (including costs incurred responding to her claim before it was litigated). 2. In the alternative to (1), pursuant to s 98(1) of the Civil Procedure Act 2005, the plaintiff is to pay the defendant's costs on an indemnity basis from the commencement of proceedings on 24 November 2022. 3. In the alternative to (1) or (2), pursuant to s 98(1) of the Civil Procedure Act 2005, the plaintiff is to pay the defendant's costs from the commencement of proceedings including on an indemnity basis from 6 July 2023, or 29 November 2023, or 24 November 2022. 4. Pursuant to s 98(1) of the Civil Procedure Act 2005, the plaintiff is to pay any costs ordered to be payable to the defendant on a gross sum basis.

Evidence in support of the defendant's costs motion

1. The defendant's notice of motion was supported by the affidavit of its solicitor, Mr Patrick Thompson, affirmed on 31 July 2024. That affidavit annexed an assembled volume of costs-related papers including a bundle of correspondence and materials paginated in the series pages 1 - 167. The plaintiff did not file any documents in response to the defendant's costs motion. In these reasons, where relevant, reference will be made to specific page numbers within the defendant's costs materials.

Legal principles concerning costs

1. The determination of the residual costs questions must proceed in accordance with the exercise of the wide discretion conferred by s 98 of the Civil Procedure Act 2005 (NSW), which relevantly provides as follows: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to - (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount. …."
2. The exercise of that discretion must be appropriately reasoned: House v The King (1936) 55 CLR 499; [1936] HCA 40. The range of factors that may be taken into account in the exercise of that discretion have not been exhaustively defined: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [67], Mahenthirasa v State Rail Authority of NSW (No. 2) (2008) 72 NSWLR 73; [2008] NSWCA 201, at [8]-[9]; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, at 542.

Factual basis for the defendant's costs application

1. The defendant's primary costs application was that the plaintiff pay the defendants entire costs of the proceedings on an indemnity basis. Essentially, that submission was founded upon three factors, as identified below.
2. First, the plaintiff has obtained only nominal damages of $1.00 for a conceded brief period of trespass and the plaintiff had not succeeded in establishing any liability of the defendant for any substantive matter of contest in the proceedings, with the result that the defendant should be seen to be the "true" successful party. Secondly, the plaintiff's conduct in the proceedings was disentitling in terms of costs. Thirdly, the plaintiff had unreasonably rejected a number of offers of settlement made both before and after the commencement of the litigation, and in the final result, she achieved an outcome which was less favourable and for her worse compared to what she would have obtained had she accepted any of the defendant's offers.

Review of sequence of offers

1. Those factors will be taken up and analysed and considered after a review of the chronological sequence of historical settlement correspondence and the offers.

Plaintiff's invitation to the defendant to settle - letter dated 10 January 2022

1. On 10 January 2022, the plaintiff wrote to the NSW Crown Solicitor on a without prejudice basis inviting an offer of settlement. She did so without making an offer herself. In essence, the plaintiff's letter was in the form of an invitation to treat.
2. The plaintiff's letter to the defendant dated 10 January 2022 included some grandiose statements and boldly expressed assertions, including allegations that the police officers whose actions were the subject of her claim had acted with "demonstrated wanton disregard"; had caused $7,667.86 worth of damage to her vehicle; had ignored a 'no trespassing' sign on her property; had broken a locked gate; had committed a "break in"; had acted offensively and with bullying behaviour whilst armed; had behaved "appallingly", in breach of common law, statute, and "human decency", and with "incompetence". She alleged those actions by police officers were in the nature of a personal "vendetta". She claimed that their aim was to "intimidate" her: Exhibit "PT-1", pp 2-3.
3. Significantly, none of those allegations were made good or sustained by the findings made in the principal judgment.
4. The plaintiff's 10 January 2022 letter, which invited the defendant to settle her claim, included the following didactically expressed text: "I am offering an opportunity to acknowledge and seek forgiveness for the actions of these police officers that behaved like thugs. The millions of dollars paid to individuals to settle the three hundred or so claims made every year of (alleged) police misconduct is now widely known. I am willing to entertain a settlement and to forego legal proceedings. If you make an offer that supports the view that abuses of this kind are unacceptable, please respond by 31 January 2022. Failure to respond or negotiate, will result in legal proceedings being commenced against you with a legal team that you are well familiar with. This will include a claim for costs. Upon your checking the facts of this matter, you will realise that unlike many cases where torts are alleged, the accounts between the aggrieved and the NSWPF are not starkly different. The police have admitted to the facts. Please consider appropriate settlement of this matter." [Exhibit "PT-1", p 2; Emphasis as in the original text]
5. Throughout the proceedings, the "legal team" referred to by the plaintiff in that letter remained unidentified. If there was such a team, it took no discernibly active part in the proceedings. It is not possible to determine whether or not the plaintiff's reference to her having on her side a legal team familiar to the defendant was made in the nature of an in terrorem threat.
6. An unexplained irony which later emerged in the course of correspondence between the parties was that although the plaintiff had invited the defendant to negotiate with her, she did not seek to negotiate with the defendant with respect to any of the subsequent series of offers that the defendant had made to her. The chronological sequence of those offers now follows.

Defendant's first offer - $5,000 - Calderbank letter dated 26 February 2022

1. On 26 February 2022, the defendant's solicitor wrote a without prejudice letter of reply to the plaintiff in which, without admissions as to liability, the plaintiff was offered the sum of $5,000 in full settlement of her claims on the basis of her executing a proposed deed of release: Exhibit "PT-1", p 4.
2. The defendant's offer of $5,000 was expressed to be only for the alleged trespass to the plaintiff's premises, and it remained open for acceptance for 21 days. That letter suggested to the plaintiff that she may wish to obtain legal advice in relation to that offer.
3. The offer was expressed to have been made in accordance with the principles set out in the decision of Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586. That offer was not accepted.
4. Given the plaintiff's early expressed wish to negotiate with the defendant, as was intimated by the terms of her letter dated 10 January 2022, it is puzzling as to why she did not reply to that letter or seek to negotiate with a counter-offer if she felt disinclined to accept that offer.

Defendant's first offer of compromise - $25,000 - 6 July 2023

1. On 6 July 2023, some seventeen months after making the defendant's Calderbank offer of $5,000, the defendant's solicitor served an offer of compromise on the plaintiff offering to settle her claim in the sum of $25,000 plus reasonable costs. That offer complied with the requirements of UCPR r 20.26, and it was expressed to be open for acceptance for a period of 28 days: Exhibit "PT-1", pp 6-10. The plaintiff allowed that offer to lapse without acceptance and she did not make a counter-offer, or seek to negotiate with the defendant's solicitor.
2. The defendant's letter which accompanied that offer of compromise included a brief but adequately detailed appraisal of the liability and quantum issues in the case. That letter also suggested the plaintiff obtain legal advice in relation to that offer. The terms of that letter rejected the proposition that the defendant had any liability to the plaintiff. The offer was expressed to be a genuine offer of compromise.
3. That offer, by its terms, was also expressed to be in the alternative as a Calderbank offer. The defendant invited the plaintiff to obtain legal advice on the content of the letter and the ramifications of it for her.
4. That letter set out a brief discussion summarising the liability and damages issues which the defendant ultimately argued at trial, and which ultimately prevailed as findings on the material issues calling for determination in the substantive proceedings.
5. The defendant's letter referred to the offer of $25,000 as a "genuine compromise" position. It also referred to the considerable solicitor and client costs the State had incurred up until that time. Those costs were flagged as likely to markedly increase further if the matter proceeded to a hearing, as follows: "The State has already incurred considerable legal costs investigating the claim and preparing its defence, in the order of $55,000 on a solicitor- client basis. Is trite to observe that those costs will increase markedly if the matter proceedings (sic) to a hearing. By the Offer, not only is the State willing to waive any possible entitlement to recovery if its costs, it is paying a sizable sum to the plaintiff where (but for an error trespass to land which is admitted) it is under no legal obligation to do so. For all of these reasons, the Offer is a genuine compromise."
6. The letter concluded with an invitation to the plaintiff to discuss the matter before the offer was due to lapse if she felt the terms of the offer were unclear or ambiguous, which was plainly not the case.
7. Puzzlingly, the plaintiff did not make any counter-offer to that letter, nor did she seek to negotiate with the defendant in a timely manner in response to the defendant's offer of $25,000.

Plaintiff's letter dated 1 August 2023 in response to 6 July 2023 offer of compromise

1. On 1 August 2023, the plaintiff sent a rambling two-page letter of reply to the defendant's offer dated 6 July 2023: Exhibit "PT-1", pp 11-12.
2. In that letter, the plaintiff raised obfuscatory matters concerning the obligations of a model litigant and she referred to matters to do with her "at least 100 pieces of correspondence" she claimed to have had with the Commissioner of Police regarding the events which led to this litigation. The plaintiff's cited correspondence with the Commissioner of Police was not in evidence in these proceedings.
3. The plaintiff's letter dated 1 August 2023 went on to quibble with the defendant's suggestion that the accrued amount of $55,000 in defence costs had already been incurred. Irrelevantly, the plaintiff wanted details of that amount in order to "evaluate this offer". The offer was capable of evaluation without the details sought by the plaintiff. The letter also questioned why the defendant would be seeking indemnity costs from her. It went on to distractedly refer to an earlier settlement conference that had apparently taken place in August 2022, and an apparently unfruitful mediation which she had sought in early 2023.
4. It is puzzling as to why the plaintiff's response as cited above was focussed on seeking details of the defendant's costs instead of engaging with the offer and responding with a counter-offer, or at least providing an explanation to the defendant as to why she may have considered the offer of $25,000 to be inadequate.
5. The plaintiff concluded her letter dated 1 August 2023 with the following didactic statements: "Quote from wise judges: The State should pay a substantial sum so that it would learn the need for police to be educated properly and indicate that 'people's liberty is not to be trifled with'. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government. I may seek further clarification but, wanted to get this letter off to you today."
6. It is also puzzling as to why the plaintiff did not then, or subsequently, engage with the defendant on the subject of the reasonableness or otherwise of the defendant's offer of $25,000. It is not known as to what if any advisory input her cited legal team may have had at the time when she was considering that offer from the defendant.

Defendant's letter dated 19 September 2023 - reply to plaintiff's letter of 1 August 2023

1. On 19 September 2023, the solicitor for the defendant wrote a reply to the plaintiff's letter dated 1 August 2023: Exhibit "PT-1", pp 13-14.
2. That reply briefly engaged with some identified points of "tangential connection" which had been raised in earlier correspondence (where not all of that correspondence was in evidence) and concluded by the defendant renewing its previously lapsed offer of $25,000 for a further period of 7 days.
3. The defendant's letter dated 1 August 2023 again urged the plaintiff to obtain legal advice. That letter summed up the defendant's position on the plaintiff's correspondence as follows: "With respect, we will not engage with comments on matters that could not have a bearing on the consideration of the reasonableness of our Offer. Our client's Offer was an attempt to resolve this dispute by making available to you a particular figure for damages. That figure is an appropriate one having regard to the liability and quantum issues in this case, for the reasons set out in our 6 July 2023 letter. You may disagree with the points we have raised, and you may wish to raise other matters, but that is not the same as being unable to consider the reasonableness of our offer".
4. There was no indication from the plaintiff as to why she may have thought the defendant's offer of compromise was considered by her to be unreasonable or why it should not be accepted by her.

Defendant's second offer of compromise - $30,000 - 29 November 2023

1. On 29 November 2023, two months before the scheduled hearing, without prejudice save as to costs, the solicitor for the defendant sent the plaintiff a further offer of compromise, this time in the increased sum of $30,000 plus costs. That offer also complied with the requirements of UCPR r 20.26: Exhibit "PT-1", pp 15 - 17.
2. That letter referred to the earlier letter dated 6 July 2023 that the solicitor for the defendant had sent to the plaintiff. It again outlined the defendants position concerning the issues of liability and damages.
3. That letter also referred to the considerable ongoing legal costs that were being incurred by the defendant in investigating the claim and preparing the defence. At that stage, those costs were estimated by the solicitor for the defendant to be approximately $90,000 on a solicitor-client basis. The letter referred to this new offer of compromise as a further genuine attempt to compromise the proceedings.
4. Significantly, the letter dated 29 November 2023 referred the plaintiff to the indemnity costs provisions within UCPR r 42.15 and r 42.15A, and went on to inform and assist her with the following information: "… These rules are intended to encourage the parties towards compromise and settlement. If you are ultimately awarded less than this offered by the Court, then it is entirely appropriate that you pay our client's costs on an indemnity basis from the date of this offer was made, since (in this scenario) your decision to defend (sic) the proceedings rather than to take this offer will be inutile and forced our client to go to great expense of further defending the matter." [Emphasis as in the original text]
5. UCPR r 42.15 provides as follows: "42.15 Where offer not accepted and judgment no more favourable to plaintiff (1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim no more favourable to the plaintiff than the terms of the offer. (2) Unless the court orders otherwise - (a) the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis - (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made."
6. UCPR r 42.15A provides as follows: "42.15A Where offer not accepted and judgment no less favourable to defendant (1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer. (2) Unless the court orders otherwise - (a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis - (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made."
7. As before, the defendant's letter dated 29 November 2023 concluded with an invitation for the plaintiff to discuss the offer with the defendant's solicitor before it lapsed if she felt it was unclear or ambiguous. That offer was also allowed to lapse without acceptance.
8. The defendant's response in referring the plaintiff to the relevant procedural rules comprising UCPR r 42.15 and UCPR r 42.15A was in keeping with the defendant's obligations of a model litigant.
9. If the plaintiff had taken the time to refer to and consider those provisions, either with or without legal advice, she ought to have realised she was taking risks as to costs if she did not obtain a more favourable outcome in her case when compared to the defendant's offers.

Plaintiff's 19 December 2023 reply to offer of compromise dated 29 November 2023

1. On 19 December 2023 the plaintiff sent the solicitor for the defendant an email peremptorily demanding a list of admissions, a list of details of its compliance with model litigant obligations, and claimed, spuriously in my view, that without such details this "prohibits any reasonable consideration of any offer of a monetary value": Exhibit "PT-1", p 18.
2. In my view, the defendant's increased offer of $30,000 was plainly capable of evaluation on its face without the details requested by the plaintiff. It appears that the plaintiff had become distracted by her quest for such details. Significantly, in her letter, the plaintiff did not make any comments to suggest that the defendant's latest offer of compromise was unreasonable in any respect.
3. Relevant to the issue of costs, the plaintiff's email again distractedly focussed on the defendant's accumulating costs estimate, and stated: "I dare to ask how you justify a spend of $90,000 on a matter where the police broke into my property without license or authority. This is a matter of public interest, as that money would be better spent to educate police officers. It is certainly of interest to those in Parliament working towards establishing a commission of inquiry into police civil claims and self-investigation."
4. It appears that email was sent by the plaintiff twice on that date, within a very short space of time; Exhibit "PT-1", pp 18 and 20. Puzzlingly, the plaintiff made no counter-offer to the lapsed offer of compromise in the sum of $30,000.

Defendant's 19 December 2023 response to plaintiff's email of the same date

1. On 19 December 2023, some 20 minutes after the plaintiff last sent her email of the same date as cited at paragraphs [66] to [68] above, the solicitor for the defendant sent the plaintiff an email reply in the following terms: "Dear Ms Zey Without prejudice save as to costs As to the terms of the offer, they are as follows. If you accept the offer, you will be entitled to, and we will promptly consent to, a judgment being entered in your favour in the sum of $30,000. The Judgment would read exactly as set out in the offer. Because our offer made no provision in respect of costs, under rule 42.13A of the UCPR, you would also be entitled to an order in your favour for costs in respect of the claim, assessed on the ordinary basis up to the time when the offer was made. The consent judgment would read as follows: 1. Judgment for the Plaintiff in the sum of $30,000. 2. Defendant to pay the Plaintiff's costs assessed on the ordinary basis up until 29 November 2023. Once that judgment is entered and once the orders are made, we would then arrange payment of the judgment sum once you nominate a bank account and provide details. You would receive the full judgment sum within 28 days of judgment being entered and provision of EFT details. At the same time, we could then discuss the costs you are entitled to. The State's "admissions" are as set out in the pleadings. Respectfully, we will not be drawn on any other matters which are not necessary to understand the reasonableness of the offer. The case for the reasonableness of the offer is as set out in our letters of 6 July 2023 and 29 November 2023. If you would like for the Offer to be kept open for a period longer than 5 January 2023 [sic], let us know. Please be aware that our office will be closed from 23 December 2023 - Monday 8 January 2024."
2. The above letter was expressed in clear and unambiguous terms such that the plaintiff, with her level of education and business acumen, ought to have been able to readily understand.
3. Puzzlingly, it appears that the plaintiff did not reply to the 19 December 2023 email sent by the defendant's solicitor. Ultimately, as the trial date drew nearer, the defendant's renewed offer of settlement in the sum of $30,000, which was due to expire on 5 January 2024, was allowed to lapse without acceptance.

Defendant's third offer of compromise - $30,000 - 20 February 2024

1. On 20 February 2024, the solicitor for the defendant served a third offer of compromise on the plaintiff, again for $30,000, but this time with a more limited time frame for acceptance as the hearing was imminent - 6 days away. That offer complied with the requirements of UCPR r 20.26: Exhibit "PT-1", pp 21 - 22. That new offer was stated to remain open for acceptance until 4:00pm on 22 February 2024.
2. Plainly, by that increased offer, the defendant was seeking to avoid the escalating costs of the imminent hearing.
3. The plaintiff did not accept that offer, and puzzlingly, she did not respond to it, and the matter then proceeded to a hearing which commenced on 26 February 2024 following an unsuccessful mediation which had been ordered to proceed on that morning pursuant to s 26 of the Civil Procedure Act 2005 (NSW). The parties were provided with that opportunity whilst the circuit list was being called over and notices of motion in other cases were dealt with.
4. Ultimately, the plaintiff's case required a total of 11 listing days. The procedural detail of those listings has been more fully described in the principal judgment: Eedra Zey (formerly using the pseudonym Eva Williams) v State of New South Wales (No. 2), supra, at [21] - [55], where, at [21], the following finding was recorded: "[21] Regrettably, the proceedings have become needlessly protracted, having occupied disproportionate court time, including an extra-ordinary number of interlocutory listings, intra-hearing delays, and applications of varying kinds. A summary of those unfortunate events now follows."
5. Those listings and a series of related directions to the defendant became necessary and were aimed at ensuring procedural fairness to the absent plaintiff to seek her re-engagement with the proceedings.

Costs claimed by the defendant

1. The details of the defendant's claimed costs of $320,000 were identified at paragraphs 19 to 21 of Mr Thompson's affidavit., as explained in the paragraphs and the tabulations that now follow.
2. The individual bills for those costs as set out in summary form in a source referenced tabulation identifying the billing sequence, the dates of the respective billings, the solicitor's professional costs, the disbursements incurred including counsel's fees, with identified totals, as follows. No. Date Solicitor's Professional Disbursements including Counsel's Fees Total Page Reference in Exhibit PT-1 Costs
3. 28.02.22 $0.00 $35.65 $35.65 27
4. 11.03.22 $6,121.50 $0.00 $6,121.50 35
5. 30.06.22 $1,759.01 $0.00 $1,759.01 39
6. 31.08.22 $4,116.42 $0.00 $4,116.42 42
7. 31.01.23 $10,648.88 $0.00 $10,648.88 45
8. 31.03.23 $19,950.04 $257.81 $20,207.85 49; 56
9. 31.05.23 $3,241.15 $0.00 $3,241.15 59
10. 30.06.23 $9,877.89 $0.00 $9,877.89 63
11. 31.07.23 $21,653.17 $0.00 $21,653.17 68
12. 31.07.23 $0.00 $9,735.00 $9,735.00 75
13. 26.09.23 $16,691.84 $731.86 $17,423.70 79; 85
14. 30.11.23 $44,579.70 $0.00 $44,579.70 92
15. 29.02.24 $52,106.23 $27,741.45 $79,847.68 103; 112
16. 23.05.24 $30,363.08 $0.00 $30,363.08 135
17. 23.05.24 $0.00 $53,502.55 $53,502.55 143
18. 15.06.24 $9,750.18 $0.00 $9,750.18 147
19. 26.07.24 $8,881.44 $8,887.27 $17,768.71 151; 165
20. (Estimate of fees yet to be billed) - - $3,500.00 - TOTAL $239,740.63 $100,891.99 $344,132.12

1. Uncontroversially, the defendant submitted that those components which were billed to the defendant and paid by the defendant, should carry Practice Note interest claimed pursuant to s 101 of the Civil Procedure Act 2005 (NSW).
2. The defendant submitted an interest calculation relating to a series of 17 invoices issued and paid between 28 February 2022 and 17 July 2024. The interest claimed, totalling $20,818, was calculated in accordance with applicable published rates appearing on a publicly accessible online interest calculator identified at paragraph 28 of the defendant's written submissions. The results of those calculations are set out according to the following tabulation. No. Invoice date Total Total Interest

3. 28.02.22      $35.65                                               $7
   

4. 11.03.22      $6,121.50                                            $1,265
   

5. 30.06.22      $1,759.01                                            $331
   

6. 31.08.22      $4,116.42                                            $727
   

7. 31.01.23      $10,648.88                                           $1,555
   

8. 31.03.23      $20,207.85                                           $2,654
   

9. 31.05.23      $3,241.15                                            $376
   

10. 30.06.23      $9,877.89                                            $1,073
    

11. 31.07.23      $31,388.17                                           $3,142
    

12. 26.09.23 $17,423.70 $1,470
13. 30.11.23 $44,579.70 $2,959
14. 29.02.24 $79,847.68 $3,258
15. 07.03.24 $0.00 $0
16. 29.03.24 $30,363.08 $989
17. 23.05.24 $53,502.55 $910
18. 15.06.24 $9,750.18 $102
19. 17.07.24 $17,768.71 N/A Total $340,632.12 (not including the fees not yet billed) $20,818

1. The defendant submitted that in the specified gross sum costs assessment which it seeks, those elements of costs should be variously discounted by 15 percent as to solicitor's costs, and 5 per cent as to disbursements, as appears in the following tabulation. On that approach, those figures yielded a discounted rounded down claim for specified gross sum costs of $320,000 which included an allowance for a relatively small amount of defendant's costs for as yet unbilled work in progress to the point of concluding work on the matter. Item Total Percentage Amount claimed Solicitors' costs $239,740.53 85% $203,779.45 Disbursements $100,891.59 95% $95,847.01 Interest on costs $20,818 85% $17,695.30 Estimated further WIP ($3,500) $3,500 85% $2,975 Total (rounded down) $320,000

1. Those costs are the subject of the detailed consideration that now follows.

Consideration of the issues raised in the defendant's application for costs

1. The defendant's costs application stands to be determined by addressing the following questions: 1. Whether or not the defendant has established its claim of a just entitlement to an order that the plaintiff pay its costs of defending the proceedings notwithstanding that the plaintiff has obtained a monetary judgment in her favour; 2. Whether or not the defendant has established its claim of a just entitlement to an order that the plaintiff pay its costs on an indemnity basis, and if so, from what date should an order to that effect apply; 3. Whether or not the defendant has established a just entitlement to a specified gross sum costs order; 4. In the event the defendant establishes an entitlement to one or other of the above orders, in what amount should the defendant's costs be assessed.

(1) Defendant's claim for its costs to be paid by the plaintiff

1. As a paradoxical consequence of the pre-litigation stance taken by the plaintiff, where, by her letter dated 10 January 2022, she invited the defendant to make a settlement offer and to negotiate with her, she allowed the ensuing offer made by the defendant in reply on 26 February 2022 in the sum of $5,000 to lapse without acceptance.
2. In taking that course, the plaintiff did not seek to either negotiate with the defendant or to make a counter-offer. The defendant was therefore required to respond to the plaintiff's chosen course and defend all the ensuing issues raised by her, including a non-issue, namely a brief trespass to her property, which the defendant had conceded in correspondence from the outset.
3. It appears that the plaintiff declined the defendant's pre-filing offer of $5,000 because, as was her right, she apparently wanted to litigate the six other issues of concern to her, and upon which ultimately, she was wholly unsuccessful in the outcome of the substantive proceedings.

Consideration of pre-trial factors relevant to costs

1. Whilst the plaintiff obtained an award of $1.00 on the conceded issue of trespass to her property, overall, that outcome represented an overwhelmingly less favourable and worse monetary result compared to the monetary outcome she could have achieved if she had accepted the defendant's offer of $5,000 as was conveyed to her by letter dated 26 February 2022.
2. In those circumstances, notwithstanding the entry of judgment in favour of the plaintiff for the nominal amount of $1.00, the irresistible conclusion is, as was submitted by the defendant, that the plaintiff's victory was pyrrhic, and the defendant must therefore be seen to be the truly successful party; Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales (No. 2), supra, at [241].
3. Where a litigant recovers only nominal damages there is no axiomatic or consequential entitlement for the recipient of such an award to obtain an order for costs. On the contrary, a defendant against whom a nominal award of damages has been made may be awarded costs in such circumstances: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, at [90]. An entitlement to costs does not necessarily follow from an empty victory: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603, at [684].
4. Consequently, the defendant seeks a costs order against the plaintiff, citing Motium Pty Ltd v Arrow Electronics Australia Pty Ltd 2011] WACA 65, at [10], where it was determined that: "Whilst each case must depend upon its own facts, where it is not a primary purpose of proceedings to establish or vindicate some legal right but the primary purpose is to recover substantial damages, ordinarily an award of nominal damages will not entitle a party to the costs of the proceedings: see Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2001] WASCA 166 [9]. In such as case, the party has obtained something of no real value to them and something which, if they had known it was all that was available, they would not have brought the proceedings to recover. It would be contrary to modern notions of the efficient and cost-effective use of judicial resources to enable a party to recover its costs for a pyrrhic victory, having substantially failed in the action."
5. The defendant submitted that those cited remarks, in particular the portion emphasised above, aptly apply in this case because the defendant should be seen to have been the true successful party, having successfully defended each element of the plaintiff's claims in circumstances where she had been seeking substantial damages. I accept that submission.

Consideration of plaintiff's litigation conduct disentitling her to costs

1. The defendant pointed to the plaintiff's conduct during the litigation, characterising it as misconduct, and submitted that it disentitled her to an order for costs. Misconduct in this context includes conduct relating to the litigation where a litigant has unnecessarily protracted the proceedings or obtained a result which the other party had already offered in settlement of the dispute: Oshlack v Richmond River Council, supra, at [69].
2. The defendant also pointed to authority for the proposition that the categories of litigation misconduct have not been exhaustively defined, where a successful party may not be entitled to an order for costs: Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No. 2) [2011] NSWCA 258, at [98].
3. The latter authority was invoked by the defendant in view of the fact that technically, since the plaintiff obtained a judgment for $1.00, that outcome might be seen to represent success on her part, although overall, in reality she was unsuccessful. That characterisation formed the basis for the defendant's application for costs.
4. The defendant submitted that the plaintiff's disentitling conduct comprised the following factors.
5. First, by her underlying conduct on 21 September 2019, which formed the basis for police involvement with the plaintiff and to the proceedings, the plaintiff had permitted a public nuisance which necessitated the presence of police officers at her premises, about which she then complained.
6. Secondly, the plaintiff attempted to use this litigation to seek to transform the characterisation of the ensuing circumstances into an appearance of gravity affecting her rights when, in reality, the only true issue of merit in her favour was that of the conceded minor trespass which was conceded by the defendant. The defendant submitted that the plaintiff then compounded her situation and increased the costs of the litigation by refusing a series of reasonable offers of settlement each of which represented genuine and generous attempts by the defendant to resolve her claim, and in the process, vast amounts of public money had to be expended to defend those claims.
7. Thirdly, the way in which the plaintiff conducted her litigation created needless expense for the defendant. This ocurred when she abandoned the hearing at the end of the fourth day and did not re-attend, and when she filed a complex notice of motion and then did not appear to make her arguments in support of that motion, which was dismissed on 26 April 2024: Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales, supra.
8. Her subsequent continuing absence required the Court and the defendant to take extraordinary measures to ensure she was afforded procedural fairness in the management of the case to its logical procedural conclusion. Those events led to multiple procedural delays and additional costs: Eedra Zey (formerly using the litigation pseudonym Eva Williams) (No. 2) v State of New South Wales, supra, at [21] - [55].
9. Fourthly, once an indication of the nature of the plaintiff's mental health issues became known after her medical records were produced on subpoena during the trial (Exhibit "F"), she then failed to co-operate with the defendant's attempts to have her medically examined to ascertain her fitness to manage her litigation. This included her non-compliance with a court-ordered medical examination for that assessment to take place pursuant to UCPR r 23.2. The defendant ultimately took a pragmatic view of the circumstances of the plaintiff's non-compliance with that order and did not seek to expand the costs index and further delay the proceedings by seeking to further enforce the order for her to attend a medical examination. However, those events added a further needless layer of delay and costs.
10. Fifthly, even making full allowance for the fact that the plaintiff is a self-represented litigant, she has persistently acted in an manner that frustrated the court's processes, and this must be seen to be disentitling on account of the significant amounts of public moneys that had to be expended with regard to the defendant's costs thrown away: see Eedra Zey (formerly using the pseudonym Eva Williams) v State of New South Wales (No. 2), supra, at [21] - [55]. That litigation behaviour was contrary to the obligations of litigants pursuant to s 56 of the Civil Procedure Act 2005 (NSW).
11. I accept the defendant's submission that the plaintiff's litigation conduct unnecessarily led to 11 listing days in the court, where many of those listings had to be conducted in her unexplained absence. This led to a considerable waste of the court's time and public resources, and as a result the defendant was obliged to incur additional levels of legal costs and associated expenses that would otherwise have been unnecessary.

Plaintiff's claim of PTSD

1. In arriving at the finding above I have not overlooked the plaintiff's claim that she has an underlying, but not proven to be related, condition of PTSD: Exhibit "F".
2. Although on a superficial analysis it might appear that the plaintiff's conduct comprising her uncooperative attitude to the advancement and finalisation of her litigation may possibly have been in part due to her mental state, and her PTSD may possibly have also been a factor, those suggested possibilities were not satisfactorily proven by cogent medical opinion that either explained or excused her bizarre litigation conduct.
3. The plaintiff's PTSD only belatedly became the subject of brief medical documentation by her general practitioner after the plaintiff had absented herself from continued involvement in the case. It was identified in the context of seeking to excuse her initial non-attendances.
4. The plaintiff's condition of PTSD, of itself, without cogent explanatory medical evidence as to her ongoing absence and disengagement from her case, as was outlined in the previous judgments delivered in this case, did not explain or excuse her from continuing to engage with the requirements of her case: s 56 of the Civil Procedure Act 2005 (NSW); Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales, supra, at [35] - [55]; Eedra Zey (formerly using the pseudonym Eva Williams) v State of New South Wales (No. 2), supra, at [25], citing Bobolas v Waverley Council [2016] NSWCA 139, at [220].
5. In my assessment, a superficial analysis to the effect that the plaintiff's litigation behaviour may have been influenced by her PTSD condition is overwhelmingly outweighed in this case by the plaintiff's repeated refusal to undergo a medical assessment pursuant to an order of the court made pursuant to UCPR r 23.2, as has previously been analysed and explained above and in the principal judgment: Eedra Zey (formerly using the pseudonym Eva Williams) v State of New South Wales (No. 2), supra, at [41] - [42]. That examination, if attended, would most likely have provided the plaintiff with an opportunity to articulate what role if any her PTSD might have had on her apparent disengagement from the completion of her case.
6. Courts generally recognise that mental illness is a prevalent phenomenon in the community and many litigants with mental health issues, including PTSD, find it necessary to attend court proceedings: Haddad v The GEO Group Australia Pty Ltd (No. 2) [2024] NSWCA 140, at [24].
7. If a litigant seeks special procedural consideration on account of such matters to the extent of requiring a pause in the continuation of the case or an adjournment of the proceedings, appropriately current and cogent medical evidence is required to explain and justify such a course: Bobolas v Waverley Council, supra, at [220].
8. Despite some earlier documentary evidence from the plaintiff's treating general practitioner (Exhibit "F") which revealed that the plaintiff had PTSD, and that she had a treating psychiatrist, cogent supporting evidence along those lines relevantly linking any condition of her health to her litigation conduct and her decision to absent herself from attending court to finalise her proceedings, was starkly absent. As a result, the proceedings became significantly disrupted by the plaintiff's decision to absent herself from the continued hearing of the case which she had started.
9. There was no medical evidence that rationally explained the plaintiff's disruptive litigation conduct and her ongoing absence from the proceedings. In submissions, the defendant referred to the plaintiff's assertion that she required sensory isolation. There was no medical evidence put forward by her to justify such a claim and it is not a matter upon which a court can draw non-speculative positive inferences without cogent medical evidence making the necessary link.
10. On the subject of the plaintiff's claim of a need for a sensory ban as a possible explanation for her continuing non-engagement with the litigation, the defendant's submissions made an astute observation to the effect that claimed need (which appears to have been self-imposed by the plaintiff) did not seem to have prevented her from filing a complex interlocutory notice of motion which was dismissed on 26 April 2024: Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales, supra.

Conclusion as to the plaintiff's costs liability

1. On account of the foregoing factors, I accept the defendant's submission that the plaintiff's described litigation conduct was disentitling as to costs, with the result that she should therefore pay the defendant's costs of and incidental to the proceedings: s 98(1)(b) of the Civil Procedure Act 2005 (NSW).
2. I therefore find that the defendant is entitled to an order that the plaintiff pay its costs incurred in defending her claim. The plaintiff obtained judgment in the sum of $1.00 which represents no real value to her compared to the amount of $350,000 which she was seeking. The inescapable conclusion is that the plaintiff has substantially failed to establish her claim. She could have avoided that result if she had not unreasonably refused to engage with and accept a series of reasonable settlement offers. She must therefore pay the defendant's costs as agreed, assessed or otherwise ordered pursuant to s 98 Civil Procedure Act 2005 (NSW).

(2) Indemnity costs

1. An order for indemnity costs is compensatory and is not designed to punish a party for persisting with a case that ultimately turns out to fail. It should not be seen as a means by which to deter litigants from putting forward arguments that might be attended with uncertainty. Instead, the purpose of an indemnity costs order is to compensate fully the entitled party for the expenditure of costs incurred as a consequence of unreasonable litigation decisions made by the opposing party where an ordinary costs order would not have that effect: Hamod v State of New South Wales [2002] FCAFC 97, at [20].
2. The defendant's letter of offer to the plaintiff dated 26 February 2022, as identified at paragraphs [36] to [39] above, conveyed an offer to settle her claim in the sum of $5,000. That offer was expressed to have been made in accordance with the principles set out in the decision of Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586.
3. In Commonwealth of Australia v Gretton [2008] NSWCA 117, it was noted, at [44] - [46], that: "44 Two general 'rules' have emerged relating to Calderbank offers, namely, that to justify the making of an order for costs on an indemnity basis, the offer must be a genuine offer of compromise, which it is unreasonable for the appellant not to accept: Herning v GWS Machinery Pty Ltd (No. 2) [2005] NSWCA 375 at [4]-[5]; Leichhardt Municipal Council v Green at [21]-[24], [36]. However, as this Court (Santow, Bryson JJA, Stein AJA) pointed out in Leichhardt Municipal Council v Green at [8], the 'common law principles' that have been developed in relation to costs "operate merely as guides to how the discretion might appropriately be exercised". The principles or rules to which I have just referred fall within that category. 45 The discretion is to be exercised having regard to all the relevant circumstances in the case. The question that had been raised in Leichhardt Municipal Council v Green was whether there had been a genuine offer of compromise. As the Court said at [21]: "There is little appreciable difference between saying that an offer should not in the court's discretion attract costs sanctions in the circumstances and saying that an offer is not a genuine offer of compromise in the circumstances. Both depend upon a value judgment of the offer and the conduct of the parties in the circumstances of the claim." 46 The onus is on the party making a Calderbank offer to satisfy the court that it should exercise the costs discretion in its favour: see Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61."
4. In Evans Shire Council v Richardson (No. 2), supra, at [27]-[28], as is the case here, the opponent did not file any costs submissions. In that case it was determined that for an applicant to discharge the onus of establishing an entitlement to indemnity costs, the question of whether it was unreasonable for the plaintiff to fail to accept, or not to respond to an offer, had to be considered in all the relevant circumstances.
5. The relevant circumstances which require examination, which are examined and considered in the ensuing paragraphs, include whether the relevant offers represent genuine offers aimed at compromising and resolving the proceedings in light of what was at stake for the parties, the reasonableness or otherwise of the plaintiff's responses to the defendant's offers, and the litigation conduct of the parties.

Genuine offer of compromise

1. I find that the defendant's initial Calderbank offer of $5,000, when served on the plaintiff, warranted serious consideration by her as it provided a reasonable opportunity for the consideration of a resolution of complex, costly, and prolonged contested litigation that carried with it significant layers of conflict, stress, uncertainty as to the result on the liability and quantum issues, and it carried the risk of a potential liability for significant costs if the litigation proved unsuccessful.
2. In my view, the same conclusion applies to the plaintiff's non-acceptance of the three subsequent valid and rules-complaint offers of compromise respectively dated 6 July 2023 ($25,000 plus costs), 29 November 2023 ($30,000 plus costs), and 20 February 2024 ($30,000 plus costs).
3. When a party makes an offer of settlement in the form of a Calderbank offer or a rules-compliant offer of compromise the recipient is faced with choices that may become relevant as to costs issues.
4. The defendant's 26 February Calderbank offer of $5,000 was made at the invitation of the plaintiff by letter dated 10 January 2022. At that time the plaintiff framed that invitation she represented to the defendant that she had access to an experienced team who were reportedly known to the defendant as having expertise in the type of case she was seeking to mount against the defendant.
5. The receipt of the offer of $5,000 offer for the conceded trespass ought to have been an occasion for the plaintiff to pause and take stock, and at the very least evaluate that offer of settlement to determine whether it should be accepted or rejected as satisfactory vindicatory compensation, or whether to seek to enter into negotiations for a higher sum. At that time the plaintiff was on notice of a potential liability for indemnity costs. In those circumstances she allowed the offer to lapse without making a counter-offer.
6. The assessment of damages for trespass to property is an evaluative exercise which can attract a disparate range of damages where much depends upon the reason for and the extent of the trespass in the context of the surrounding circumstances. In this case, trespass occurred when the lawful presence of police officers pursuant to an implied licence become a trifling trespass when the plaintiff, by her words, withdrew that licence and it took a few minutes before the police officers to leave.
7. Generally, an only brief period of trespass would call nominal damages: Cash and Brown v Chief Constable of Lancashire Constabulary [2008] EWHC 396. In that case, at [26], nominal damages were assessed at £150. Although there are no directly discernible comparable cases in this jurisdiction involving the same or similar facts to those as found in the primary judgment to guide the assessment of damages in these proceedings, some basic legal research by or on behalf of the resourceful plaintiff would have been informative, and within her ken, given her adeptness for citing legal materials.
8. Basic research along those lines ought to have revealed a disparate background range of possible monetary outcomes even before a need arose to consider any disentitling conduct on the plaintiff's part, such as her underlying provocative conduct which required the police to enter her property pursuant to an implied licence to do so in order to speak to her about moving her vehicle to abate a public nuisance.
9. Some examples of damages awards in cases of brief trespass to property in this jurisdiction are instructive, and reveal the following: 1. In a case where trespass by a police officer occurred after he had placed a foot over the threshold of a doorway, only nominal damages were awarded: AD v State of New South Wales [2022] NSWDC 546, at [104] - [112]; [144]. That approach was affirmed on appeal: AD v State of New South Wales [2023] NSWCA 115, at [126] - [128]. 2. In New South Wales v Bouffler [2017] NSWCA 185; (2017) 95 NSWLR 521, at [8], damages for trespass were assessed $5,000. 3. In McCarthy v State of New South Wales [2013] NSWDC 247, at [172], where the trespass was more than just trifling, damages were assessed at $10,000. 4. In New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, at [20], damages for a police trespass involving an unannounced late-night entry onto premises where a police officer had pointed a gun at the occupant, damages were assessed at $10,000. 5. In Shannon v New South Wales [2015] NSWDC 69; (2015) 20 DCLR (NSW) 144, at [57], a case where police officers had left premises and had then later returned but left within a reasonable time of being asked to do so, damages were assessed at $3,000. 6. In Romani v State of New South Wales [2023] NSWSC 49, at [93] - [94], damages for a serious trespass to land were assessed at $7,500. 7. In Sahade v Bischoff [2015] NSWCA 418, at [5], [170], where a one metre trespass intrusion onto that plaintiff's property lasted for 13 seconds, damages were assessed at $500.
10. None of those cited cases involved antecedent provocative conduct or subsequent un-cooperative or disentitling conduct on the part of the respective plaintiffs, unlike the facts found in this case.
11. Where a Calderbank offer or a rules-complaint offer of compromise is served on a party in litigation, that event should be seen to be a sentinel moment which ought to send a signal to the recipient that there is a need to pause and take stock of the costs risks involved in proceeding any further rather than accepting the offer so made, or to at least to seek to negotiate from that baseline.
12. In respect of each of the sequential offers made by the defendant in this case, there is no evidence to suggest that on any of those occasions, the plaintiff had paused and taken stock to seriously or rationally engage with or consider the potentially adverse costs consequences to her if the defendant's offers were not accepted and she received a less favourable outcome compared to what was on offer. On the contrary, absent correspondence to show otherwise, it appears that she simply allowed each of those offers to lapse, without conveying any counter-offer. In my view, those circumstances indicate unreasonable conduct on the part of the plaintiff.
13. The timing of the lapse of each of those offers by the defendant was followed by the defendant having to take further preparatory steps and incur increasing levels of legal costs, a fact which was flagged to the plaintiff in earlier correspondence, where she was also placed on notice of the potential for an application for indemnity costs to be made against her if the ultimate circumstances so permitted.
14. In those circumstance, having regard to the potential for an award of only nominal damages, I find that each of the defendant's offers to plaintiff represented a genuine attempt by the defendant to reach a compromise with the plaintiff on her claims which ultimately substantially failed to succeed.

Did the plaintiff unreasonably fail to accept or rationally respond to the offers

1. The plaintiff's disentitling litigation conduct as described at paragraphs [93] to [103] above is also relevant to the consideration of the defendant's indemnity costs application, as follows.
2. In the described circumstances of this case, where it appears from the plaintiff's letter to the defendant dated 10 January 2022, as cited at paragraphs [30] to [34] above, where she implied that she was being assisted by if not advised by a legal team experienced in this type of litigation, where she said that team was known to the defendant, is seems most likely the plaintiff would have been in a reasonable position, either on account of her own intellectual skills and business acumen, or assisted by her experienced legal team at that time, to make an informed judgment about the value of the offer of $5,000 to her in terms of whether or not it was worthwhile for her to either to accept or reject that offer, with or without a counter-offer being made in the course of negotiations, and instead, to proceed litigate her issues in order to obtain a judicial determination in her case. The latter course carried with it risks as to costs.
3. For whatever reason, the plaintiff chose the latter course. The plaintiff's precise reasoning for doing so is not clear, and whilst she has not explained her reasons, it is not necessary to speculate upon why she did so, particularly where she has not put on evidence of the surrounding circumstances which may have influenced or directed her analysis at the time the opportunity presented itself for her to consider that first offer.
4. Nevertheless, in my view, the plaintiff's failure to engage with that initial $5,000 offer from the defendant and her failure to accept it, was unreasonable in the circumstances. That much seems clear from her pre-litigation correspondence cited at paragraph [33] above, which made it abundantly clear that she was determined to seek to exact from the defendant a salutary price in the form of a "substantial sum" so that the police would be "educated properly" and would "learn" not to trifle with a person's liberty.
5. The plaintiff's self-evident didactic agenda, as is apparent from her letter to the defendant dated 10 January 2022, indicated that the quantum of the monetary compensation she was seeking was a secondary consideration for her at that time. In my view, that approach revealed an inherently unreasonable approach to the resolution of her litigation.
6. It is also clear from that correspondence that the plaintiff was seeking an award of exemplary damages for the trespass to her land as the "method" by which the State would be "called to account" for what she characterised in her letter as being alleged police "misconduct".
7. The defendant submitted that the plaintiff had acted unreasonably in not accepting the Calderbank offer of $5,000. This was because at the time she had articulated her claim in her letter dated 10 January 2022 which led to that initial offer, she was already in an adequate position to properly consider the merits of her claim and make rational decisions about possible settlement.
8. At that early stage, she was in possession of the relevant material evidence as is evident from an earlier GIPA application which she had initiated in order to obtain relevant police documents, as is confirmed by her own chronology emailed to the Court on 12 February 2024: Exhibit PT-1, pp 23 -26.
9. This is not a case where the defendant had for example late-served crucial and previously unseen material on the plaintiff which then operated to tip the balance against her interests in the consideration of the merits of her case.
10. In addition to the GIPA materials held or obtained by the plaintiff, she had made her own contemporaneous factual recording of the incident involving her interaction with the police officers at her home, which she later played at the trial.
11. The defendant also pointed out that at the time the plaintiff was called upon to consider the defendant's Calderbank offer of $5,000, the defendant's correspondence by which that offer was conveyed included an intimation that the defendant was prepared to assist her by directing her to relevant authorities regarding the reasonableness of its offer. She did not avail herself of that opportunity.
12. The compelling inference from those circumstances is that the plaintiff knowingly took the costs risks associated with her decision not to accept the defendant's initial Calderbank offer. She knowingly also took the same risk with regard to the defendant's subsequent offers of compromise with the result that she obtained a no more favourable and significantly worse outcome than would have been the case if she had accepted the first of those offers or any subsequent offers.
13. In the final result, the plaintiff failed to achieve all of the aims on her litigation agenda: Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales (No. 2), supra, at [134] - [226].
14. I find that in taking that course the plaintiff unreasonably failed to rationally engage with any of the defendant's sequential offers of settlement. The evidence shows she made no attempt to negotiate with the defendant in respect of any of those offers.

Conclusion as to indemnity costs

1. In the foregoing circumstances, I find that the defendant's Calderbank offer dated 26 February 2022, and each of the defendant's offers of compromise respectively dated 6 July 2023, 29 November 2023, and 20 February 2024, represented relevant sentinel trigger or fulcrum points for a litigant in the plaintiff's position, acting reasonably, to pause, take stock, and give serious consideration to each of those offers so made because of the very real potential risk to her of an adverse indemnity costs order being made against her: s 98(1)(a) of the Civil Procedure Act 2005 (NSW).
2. I find that in this case, each of the defendant's offers required careful consideration by the plaintiff in light of the very real potential for her to incur adverse costs consequences that might foreseeably follow an unfavourable judgment, including indemnity costs.
3. I find that the plaintiff acted unreasonably in failing to rationally engage with each of those offers in terms of her potential exposure to the risk of incurring adverse costs, including the prospect of indemnity costs, that might become payable to the defendant.
4. The inescapable conclusion which flows from those circumstances is that the defendant has shown its just entitlement to a compensatory order that the plaintiff pay its costs on an indemnity basis from the outset.

Timing of commencement of effect of indemnity costs order

1. I find that the indemnity costs order should take effect from 26 February 2022 when the defendant made a realistic and genuine offer to settle the plaintiff's claims for $5,000 before the commencement of litigation, where that litigation became extraordinarily more protracted and expensive due to the plaintiff's litigation conduct, and her failure to engage reasonably with the process: s 98(1)(c) of the Civil Procedure Act 2005 (NSW).

(3) Whether specified gross sum costs should be assessed

1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the defendant seeks a specified gross sum cost order instead of proceeding to a formal costs assessment process that would ordinarily follow an order for costs where costs would follow the event pursuant to UCPR r 42.1.
2. That order is sought by the defendant because the subject matter of the litigation concerned a modest sum of money, a formal costs assessment would be likely to be protracted, expensive, and would be disproportionate to the amount of costs recoverable, and will likely result in difficulties recovering the costs: Deighton v Dewit [2021] NSWSC 852, at [9], citing Zepinic v Chateau Constructions (Aust) Pty Ltd [2014] NSWCA 99, at [31]; Hadid v Lenfest Communications Inc [2000] FCA 628 at [25].
3. The power to order a specified gross sum for costs is not confined and may be exercised whenever the circumstances fairly warrant such a course: Harrison v Schipp, [2001] NSWCA 13, at [139]; Hamod v State of New South Wales & Anor [2011] NSWCA 375, at [813]; Ahern v AON Risk Services Australia Ltd (No. 2) [2022] NSWCA 39, at [14].
4. The defendant submitted that in this case the early identification of certainty as to costs is desirable and that question should be resolved as soon as possible in the interests of both parties to the litigation without having to go through the attendant delays and a range of anticipated difficulties associated with the formal costs assessment process, particularly in light of the plaintiff's litigation conduct as described at earlier points in these reasons and in the previously published reasons.
5. The defendant further submitted that given the plaintiff's described disengaged litigation conduct that has been evident since the fourth day of the trial, her self-representation may make the costs assessment process more difficult, drawn out and more costly than would otherwise be the case. The inference to that effect is compellingly persuasive given the identified procedural history of this litigation.
6. The defendant also argued that it has no confidence that the plaintiff would appropriately engage with the costs assessment process given her litigation conduct to date, whereas a lump sum or specified gross sum costs order would avoid such adverse possibilities and allows the Court to "cut the Gordian knot of protracted fights about costs": Keen v Telstra Corporation Limited (No. 2) [2006] FCA 930, at [6]. That argument is also compellingly persuasive.
7. The defendant accepted that by its nature, where a specified gross sum award of costs does not result from a process of taxation of costs or a formal costs assessment, any gross sum costs awarded must be based on an informed assessment of the actual costs incurred, and the award must be logical, fair, and reasonable: Beach Petroleum NL v Johnson (No. 2) [1995] FAC 350;(1995) 57 FCR 119, at p 124, [10]; Harrison v Schipp, supra, at [139]; Hamod v State of New South Wales & Anor (2011), supra, at [820];
8. The defendant argued, correctly in my view, that the justification for making of a specified gross sum costs order arises in this case because the self-represented plaintiff is likely to remain so throughout a costs assessment, the implication being than the process would become needlessly more protracted and expensive that otherwise might have been the case: Chaina v Presbyterian Church (NSW) Property Trust (No. 26) NSWSC 1009, at [50(c)]; Dickens v State of New South Wales & Ors (No. 2) [2018] NSWSC 14, at [9]. Ahern v AON Risk Services Australia Ltd (No. 2), supra, at [14]. That argument is also compellingly persuasive.
9. The defendant also submitted, correctly as I find, that in this case the early identification of certainty as to costs is desirable and in the interests of both parties to the litigation.
10. In my view, the significant factors in this case that compel the making of a costs order of the kind sought by the defendant are that a formal costs assessment would be unduly lengthy, complex, time consuming, most likely aggravating and expensive to the parties by inference from the plaintiff's past litigation conduct, and there is a likely inability of the plaintiff to discharge a resultant costs liability in any event, especially given the self-evident disproportion between the amount of costs incurred by the defendant in defending these proceedings and the plaintiff's monetary gain from the proceedings: Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [189] - [199]; Hadid v Lenfest Communications Inc [2000], supra, at [26]; Microsoft Corporation v Jiang (2003) 58 IPR 445; [2003] FCA 101, at [2].
11. The defendant submitted that the materials relevant to the defendant's costs application as has been assembled in this case in Exhibit PT- 1 establish by reference to detailed time records solicitor client costs of $239,740.53 (inclusive of GST), and by disbursements including counsel's itemised invoices of $100,891.59 plus as yet unbilled fees estimated conservatively at $3,500, totalling $344,132.12 before discount and before interest is added.
12. In my view, the costs materials assembled by the defendant, which included the supporting materials for those figures, are sufficient and adequate for the Court to gain a broad but reliable impression of the appropriate quantum of recoverable costs before applying the required discounts, noting, that the process involving the exercise of the discretion as to costs in a specified gross sum assessment does not require as detailed an examination of the items line by line as would otherwise occur in a formal costs assessment:; Hadid v Lenfest Communications Inc, supra, at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673, at [16].
13. There were no submissions from the plaintiff to the contrary where the plaintiff had been served with the defendant's submissions and had an opportunity to make submissions in reply but did not do so.
14. I therefore accept the defendant's submissions to the effect that this is an appropriate case for a specified gross sum order for costs: s 98(4)(c) the Civil Procedure Act 2005 (NSW).
15. I will now proceed to make the required assessment of those costs.

(4) Assessment of quantum of costs

1. A specified gross sum assessment of costs must be reasoned and approached broadly and with an appropriate discount to reflect a number of factors. These include the possibility of overlapping of work tasks performed by different persons at different times, possible over-estimation of costs by the presenting party, saving of costs in lieu of a formal costs assessment, and the need to protect the rights of the affected party, in this case the plaintiff, who neither appeared on the application for costs, nor made any submissions contrary to those made by the defendant, despite her having had the opportunity to do so.

Reasonableness of solicitor's costs and disbursements

1. The reasonableness of the defendants' claimed costs must be examined in the context of the plaintiff's continuing disengagement from her proceedings. The plaintiff's attitude in that regard has led to additional elements of costs which would otherwise have been avoidable.
2. Mr Thompson's affidavit of 31 July 2024 and the annexures to that affidavit explained the structure of the defendant's costs and how they were incurred as the litigation progressed towards finality.
3. At paragraph 24 of that affidavit, Mr Thompson identified the five persons who had carried out various aspects of the professional work that was undertaken to protect the defendant's interests in the defence of the plaintiff's claim. The professional experience of those persons was also appropriately identified. Their hourly charge-out rates were also appropriately identified, as follows: 1. Supervising partner, $378 per hour; 2. Senior Associate solicitor with day-to-day conduct of the matter, $335 per hour; 3. Second less senior solicitor with day-to-day conduct of the matter, $291 per hour; 4. A junior solicitor who provided ad hoc assistance when required, $276 per hour; 5. A paralegal assistant who provided assistance when required, $146 per hour.
4. I find that the nature of the professional work carried out by those persons on the defence case, and the dates and the times at which they provided professional services, are for present purposes adequately identified and supported within the 168 pages of the materials comprising Exhibit PT-1 to Mr Thompson's affidavit. The billings for that work are transparently cross-referenced to that paginated Exhibit, as is apparent from the tabulation appearing at paragraph [79] above.
5. Mr Thompson identified a comparison between the actual hourly rates for the professional work that was billed to the defendant based on his firm's negotiated arrangements with the defendant for costs in police litigation compared to evidence of the market rates charged by similar firms in respect of legal work for government and insurance litigation.
6. That comparison was made by reference to Guidelines issued by the New South Wales Costs Assessment Rules Committee on 16 March 2016, as updated on 23 May 2023. Those Guidelines set out the suggested range of hourly rates that might be allowed on the assessment of party/party costs or ordered costs.
7. I consider that the following comparative tabulation of hourly rates prepared and submitted by Mr Thompson usefully demonstrates the general and inherent reasonableness of the rates for professional services which his firm has rendered to the defendant for defending these proceedings: Fee Earner Guideline Hourly Rates W+K Billed Hourly rates Supervising Partner $540 - $900 $378 Senior Associate $360 - $600 $335

1. Having regard to the Court's general familiarity with the process and the cost of contested litigation, I find that the comparison seen in the above tabulation self-evidently reveals the overall reasonableness of the rates for professional services charged by the defendant's solicitor in this case.
2. If instead, the billings had been rendered at the market rates as shown in the Guidelines, the defendant's solicitor's professional costs in this case would undoubtedly have been considerably higher by a significant margin. Here the plaintiff obtains a significant benefit from the reduced hourly fees that the defendant's solicitor has agreed to charge the government for defending litigation of this kind.

Appropriateness of the billings for costs and disbursements

1. On reviewing the dated events on the court file concerning the recorded pre-hearing procedural listings of the matter for directions, the associated interlocutory listings, and the professional work undertaken on the actual hearing dates, the impression which plainly arises is that the defendant's solicitors were required to undertake much preparatory professional work both pro-actively and reactively to the plaintiff's case, although ultimately, and understandably, the transcript of the proceedings does not necessarily reflect all of that background work.
2. The same analysis applies to the fees rendered by counsel and the associated incidental expenses that were necessarily incurred on behalf of the defendant. No contrary submissions were made by the plaintiff.
3. On reviewing those listing occasions cross-referenced to the actual bills for costs and disbursements sent to the defendant for payment, I find that the work undertaken by the defendant's solicitors was necessarily reflective of the need for that work, and that the disbursements, including counsel's fees as set out in the respective tax invoices, were well within the range of reasonableness according to the complexity of the work that was required to defend the proceedings brought by the plaintiff. The extent of that work was obviously influenced and increased by the plaintiff's bizarre litigation conduct.

Applicable discounts for specified gross sum costs

1. The defendant submitted that in applying the required broad brush approach to the assessment of the defendant's costs where a specified gross sum was sought for indemnity costs, discounts of 15 percent to the solicitor's costs and 5 percent to the disbursements were appropriate, following the approach recently taken Hannam v State of New South Wales (No. 11) [2023] NSWSC 472, at [102].
2. The plaintiff did not present any contrary evidence or submissions. I accept the defendant's submissions as to the respective rates for discounts as being inherently reasonable, particularly having regard to the relatively modest hourly rates that have been charged for solicitor's work and the mid-range levels of counsel's fees. Accordingly, I find that the proposed reduction of solicitor's fees by 15 percent and 5 percent for disbursements to reflect the reasonable, fair, just, and appropriate discounting elements on a specified gross sum assessment in this case.

Interest

1. The defendant's actual costs (as identified at paragraph [79] above) are in the amount of $344,132.12. The defendant seeks interest on those incurred costs in the amount of $20,818 as tabulated at paragraph [81] above. That claim should be allowed: s 101 of the Civil Procedure Act 2005 (NSW). The aggregate of those figures is the amount of $364,950.20.

Conclusion as to quantum of costs

1. Applying the submitted discounts, as appears in the tabulation at paragraph [82] above, I assess the defendant's specified gross sum costs in the discounted rounded down amount of $320,000 including interest and GST.

Orders

1. I make the following orders: 1. Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), order that the plaintiff pay the defendant's costs on an indemnity basis from 26 February 2022 in the assessed discounted specified gross sum of $320,000 inclusive of interest and GST. 2. The exhibits may be returned to the respective parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2024