Griffiths v State of New South Wales [2016] NSWSC 501 | Case summary

Griffiths v State of New South Wales [2016] NSWSC 501 | Case summary | Zoe

Judgment

In Griffiths v State of New South Wales (No 2) [2015] NSWSC 1932, I ordered that Mr Griffiths' amended statement of claim be dismissed. The State sought an order under s 98(4) of the Civil Procedure Act 2005 (NSW) that Mr Griffiths pay its costs of the proceedings as a lump sum of $180,000, or such other order as it thought appropriate. Its motion was supported by affidavits sworn by Ms Whittle its solicitor.
Ms Whittle explained in her affidavits which annexed the tax invoices for the conduct of these proceedings, the basis of the costs order sought in relation to the costs incurred by the State since 12 January 2009, in dealing with the repeated attempts Mr Griffiths had made to amend his pleadings, including: "(a) Notice of motion filed by the defendant on 15 June 2009 which sought orders that part of the plaintiffs claim be struck out or dismissed. (b) Notice of motion filed by the defendant on 24 June 2010 which sought orders that the Commissioner of Police be excused from responding to parts of a subpoena issued to him at the request of the plaintiff. (c) Notice of motion filed by the plaintiff on 17 November 2010 seeking an order that the Court extend or waive the limitation period. (d) Notice of motion filed by the plaintiff on 25 March 2011 seeking orders to amend the statement of claim. (e) Notice of motion filed by the plaintiff on 25 March 2011 seeking an order that the Court extend or waive the limitation period. (f) Notice of motion filed by the plaintiff on 8 November 2011 seeking orders that the case be temporarily placed in the inactive fist until the defendant supplied the plaintiff with formal complaint responses relating to Police Act 1990 Part 8A. (g) Notice of motion filed by the plaintiff on 17 July 2012 seeking orders that the case be returned to the active list to allow for its natural progression and seeking orders for a copy of the transcript and sound recording of transcript be furnished to him. (h) Notice of motion filed by the plaintiff on 12 April 2013 seeking orders to file an amended statement of claim. (i) Notice of motion filed by the defendant on 27 April 2015 seeking orders that the plaintiffs claim be struck out."
An offer of compromise was made on 15 April 2010, by which it was proposed that judgment be entered in the State's favour, on the basis that each party bear its own costs. A further offer for judgment in Mr Griffiths' favour for $150,000, together with costs as agreed or assessed was made in October 2013. A Calderbank offer in similar terms was made in June 2015.
The evidence is that the State has incurred costs of some $223,841.20 excluding GST, as well as counsel's fees of $87,950 and other disbursements of $3,870.63. The total amounts to some $315,661.83 excusive of GST, which is not claimed. The rates charged for attendances by various solicitors were explained. Ms Whittle explained that while on assessment, she expected that these costs would be allowed, on a party/party assessment they may be reduced by 20-25% of the total costs claimed. In the result she considered that fair and reasonable solicitor's costs would be in the order of $167,880.90; that counsel's fees would be allowed in full, given rates charged at $250 per hour, plus GST, which was in her experience below commercial value. In the result a sum of $259,701.53, including disbursements would be a fair and reasonable assessment.
Despite this evidence, to bring the proceedings to a close, the State sought an order of $180,000 on a lump sum basis, for all its costs and disbursements.
Mr Griffiths opposed a costs order being made in favour of the State, submitting that it should be responsible for its own costs. He also indicated that he proposed to counterclaim the costs order.
By his motion of 2 March 2016, Mr Griffiths sought an order under s 98(4) requiring the State to pay his costs in the sum of $210,000 or such other sum as it thought fit. He also sought an order that: "2. An order deeming that the defendant remain liable and responsible for the actions, inactions, failures via applied malice, to comply with the agreed upon terms and conditions of employment that by admission led to the plaintiff suffering from the accepted total and permanent work related disability of depression and anxiety, should there be further fresh evidence applicable."
That motion was supported by an affidavit sworn by Mr Griffiths, in which he deposed that in 2001 he had pursued an appeal in the District Court, to have his depression and anxiety accepted as "Hurt on Duty". The appeal had been settled, but "the action per se was continued on with to establish the full extent of that work disability". In 2008, he had instructed lawyers following the acceptance of his work injury/disability being permanent. In 2010, he had commenced acting on his own behalf.
Mr Griffiths explained that he considered the statement of claim and amended statements filed by his former solicitors to have been flawed and contrary to instructions. Later he had sought to amend his pleadings on some seven other occasions, but the defendant's failure to provide "the factual evidence relative to those prior given directions and unsupported actions" had prevented him from completing his amendments.
Mr Griffiths then detailed events which had occurred while he was a police officer, dating back to 1999, about which he claimed the State had made relevant admissions in September 2010 and in 2012. He also explained how, in 2010, he had first come into possession of identified reports. He also sought to explain his claims in relation to the supply of a false response to a complaint given in 2003 and what information he had received in 2007, under a Freedom of Information application had revealed.
Mr Griffiths also referred to an October 2010 conditional offer which he had made to settle these proceedings, to which there had been no response. That offer had been repeated, he said, on ten further occasions to February 2016, together with requests for the provision of specified information, which had not been responded to.
Mr Griffiths also advanced submissions as to documents relied on by the State to advance the case in which it had succeeded and resulted in the December 2015 judgment. He also itemised his claim for costs, including medical expenses, hourly charges for the time he had spent, legal fees and various disbursements. He also sought an order of $500,000 for exemplary damages.
In his written submissions of 30 March, Mr Griffiths expanded on the matters addressed in his affidavit, submitting that the State ought not to be pursuing him for costs, given his psychiatric conditions; its various admissions; his offers; the circumstances in which the hearing of the dispute as to costs had been arranged; his refusal of the State's offers, which did not provide, he said, for restoration of his credibility and other matters unnecessary here to further outline.
As to his claim for exemplary damages, Mr Griffiths complained that the only reason he had been unable to complete a fair, just and concise statement of claim had been the defendant's ongoing denial of access to relevant material. He also complained of other wrongs done to him and the State's failure to deal with them, as well as the circumstances in which he came to be hurt on duty while a police officer.
The submissions as to these matters extended in detail over some 16 pages, as to matters dating back to 1986, matters on which Mr Griffiths plainly would have sought to rely, had the orders made in the December 2015 judgment not been made and the matter gone to trial.
He also relied on the defendant's filed Court Book and associated documentation, to advance various of his submissions. He also made complaint as to various events during the course of the proceedings, pursued, he submitted, in order to ensure that his case was not heard.
A variety of other complaints and allegations were advanced, for example, as to an alleged assault by a former police officer in March 2007, which had not resulted in any charges being laid by Police. He also relied on what had occurred in the District Court proceedings, earlier referred to.
Mr Griffiths also submitted that he had been denied procedural fairness and that "in order to [b]ring my matters to a final fair and just conclusion and further to prevent and or deter similar actions as afford me, being afforded others in the future, I seek that exemplary damages be awarded".

[2]

Costs

The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that they follow the event, including where proceedings are dismissed (see Rules 42.1 and 42.20). Costs orders are compensatory. The usual order, in this case, as I said in the December 2015 judgment, is an order in favour of the State against Mr Griffiths, for costs as agreed or assessed. The Court has undoubted power, however, to depart from the usual order, including by exercise of the s 98(4) power, to make an order for a specified gross sum, instead of assessed costs.
In this case, despite Mr Griffiths' extensive submissions, he has not established any basis upon which an order for costs could be made in his favour, given what was decided in the December 2015 judgment. Further, even if such an order could be made, as a litigant in person, he could only recover reasonably incurred disbursements and witness expenses, not compensation for the time that he has spent in his pursuit of the proceedings (see Preston v Commissioner for Fair Trading [2011] NSWCA 40; (2011) 80 NSWLR 359).
Despite his very many submissions, there is no evidence of relevant misconduct in the proceedings on the State's part, of the kind discussed in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. Mr Griffiths' vehemently held views to the contrary, as explained, do not establish such misconduct.
Further, Mr Griffiths has clearly received and failed to accept offers of settlement, which were substantially more to his benefit than the orders finally made. That is, but another reason for declining to make a costs order in his favour.
The exercise of the s 98(4)(c) power was considered in Hamod v State of New South Wales and Anor [2011] NSWCA 375, where it was observed at [816] - [820]: "816 The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act , ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp ); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie's Uniform Civil Procedure NSW at [s 98.45]. 817 The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission ; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp ; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628. 818 The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie's Uniform Civil Procedure NSW at [s 98.60]). 819 The assessment of any lump sum to be awarded must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673. 820 The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2) ; Leary v Leary ; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165 ; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743 . This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165."
Here, I consider that these considerations must drive to the conclusion that justice demands that the discretion to make a gross costs order should be exercised.
The evidence I have discussed well establishes all that has been incurred in order to meet the case Mr Griffiths has sought laboriously, but unsuccessfully to express in his pleadings. Given that despite all of the effort expended, he has even yet not produced a pleading on which his case can be permitted to advance, justice demands that there should be no further time and effort spent in the pursuit of a costs assessment, which is also likely to be unnecessarily protracted and expensive, given all that has occurred to this point.
On the material, I am satisfied that the Court's power to make a gross costs order can be exercised fairly between these parties. Mr Griffiths has not sought to attack what was advanced in Ms Whittle's affidavits. They, I am satisfied, establish a just basis for a gross costs order in the State's favour of the sum claimed.
On the evidence, were the parties to be required to pursue an assessment process, Mr Griffiths is likely to be required to pay the State an even greater sum than it is prepared to accept to bring the proceedings to finality.

Griffiths v State of New South Wales

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