El-Saeidy v NSW Land and Housing Corporation

Principles 19Section 98(1) of the Civil Procedure Act provides: "(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." 20UCPR 42.1 provides: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." 21Generally speaking, UCPR 42.1 has the effect that the successful party is entitled to its costs unless the court otherwise orders. 22UCPR 42.20(1) provides: "If the court makes an order for the dismissal of proceedings... then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed." 23UCPR 42.20(1) has the effect that the plaintiff must pay the defendant's costs unless the court otherwise orders, and the court can only order otherwise if there is a discretionary decision to depart from what r 42.20(1) provides - Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 at [10]. 24The issue is whether, in the exercise of the court's discretion, there should be a departure from UCPR 42.1 or 42.20(1).

Submissions 25The written submissions for the plaintiff proceed, in part, on the basis that the stay of the CTTT proceedings which was granted on 10 November 2009 was sought in the subject summons. That is not correct. Any submissions based on that statement are misconceived. 26The plaintiff had submitted orally on 2 March 2010 that the normal order provided for by UCPR 42.20 should not apply and the Court's discretion should be exercised by awarding costs to the plaintiff on an indemnity basis. 27It was submitted for the plaintiff that the costs of the summons were incurred because the first defendant commenced proceedings in the CTTT without properly investigating the matter and when, had the first defendant delayed the commencement of the CTTT proceedings to after the finalisation of the criminal proceedings, the proceedings would have been unnecessary as would the summons the subject of this application. 28It was also submitted that the plaintiff would have succeeded if the proceedings on the summons had continued to completion. 29The first defendant, in oral submissions, submitted that it had acted responsibly in bringing the proceedings in the CTTT. It was submitted that at the time the decision was taken "they had two independent witnesses, photographic evidence, police statements and the plaintiff at all times maintained his right to silence. If at any stage the Department had been made aware that there was an independent doctor, a reliable witness, the proceedings would not have been commenced...And at no time did the plaintiff say that he had this reliable, credible witness that was visiting him at the very time of the attack and had independent notes to say so. That came out in the trial." 30The first defendant also contended it would have succeeded if the proceedings on the summons had proceeded to completion. 31The first defendant submitted that the costs should be awarded to it pursuant to UCPR 42.20. No discretionary basis to vary that order was established, the Supreme Court proceedings were distinct and separate from the CTTT proceedings and the criminal proceedings. The defendant had been successful in the proceedings in this Court as those proceedings had been dismissed.

Determination 32The first defendant was successful in the proceedings on the summons in that the proceedings against it were dismissed. Prima facie, the first defendant is entitled to its costs pursuant to UCPR 42.1 or UCPR 42.20(1). 33However, the proceedings on the summons came to an end not because the first defendant's arguments prevailed at the end of the hearing of the summons but because a supervening event, namely the acquittal of the plaintiff, has had the effect of removing the basis for the CTTT proceedings and with it the need to determine the issues raised by the subject summons. It cannot be said that it was unreasonable to proceed on the summons or that either party was almost certain to have succeeded if the matter had been fully heard. 34In these circumstances, consideration can and should be given to the exercise of the court's broad costs discretion under s 98 of the Civil Procedure Act . This is relevant both to UCPR 42.1 and UCPR 42.20(1). As to the latter, it was said in Australiawide at [53] that r 42.20(1) would be overstated if described as creating a presumption about the disposition of costs. It goes no further than to state the first point of consideration; there is no presumption which must be outweighed; what the rule says is what the order for costs is to be unless there is a discretionary decision to order otherwise. At the discretionary stage the matters to be considered are little altered. 35In One Tel Limited v Deputy Commissioner of Taxation (2000) 101 FCR 548 at 553 Burchett J observed: "(6) In my opinion, it is important to draw a distinction between a case in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the court's discretion otherwise than by an award of costs by the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs." 36In the circumstances of this case there is a difficulty in discerning a clear reason why one party rather than the other should bear the costs of the summons. 37The plaintiff contends the proceedings in the CTTT should never have been brought or continued. The first defendant contends it acted responsibly in bringing those proceedings and that it was well justified in so doing on the information available to it at the time. It acted appropriately in continuing the proceedings until it was furnished with, and had an opportunity to consider, the transcript of the criminal proceedings. 38I am unable to determine the issues thus raised on the evidence before me. No doubt those issues would be the subject of considerable debate. However, further evidence would be required to determine them. It is not the practice of the court to embark on a trial for that purpose - Australiawide at [4], and it would be inappropriate to do so in this case. 39In all of the circumstances the appropriate order, in my opinion, is that each party bear his or its own costs in respect of the subject summons, save for the costs of 15 February 2010 which were the subject of an earlier order that they be paid by the plaintiff.

Order 40Each party is to bear his or its own costs of the summons filed in this court on 4 December 2009 save for the costs in respect of 15 February 2010 which are to be paid by the plaintiff.

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