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[2025] NSWDC 211
General information, not legal advice.
District Court of NSW
2025-06-12
Abadee DCJ
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Medium Neutral Citation: Lau v Anglican Community Services (No. 2) [2025] NSWDC 211
Hearing dates: On the papers
Date of orders: 12 June 2025
Decision date: 12 June 2025
Jurisdiction: Civil
Before: Abadee DCJ
Decision: See paragraph [84].
Catchwords: COSTS – plaintiff obtains award of nominal damages for breach of contract after abandoning claims for substantial damages for breach of contract (and in negligence) and compensation for non-compliance with consumer guarantees – plaintiff fails to obtain order for court-ordered apology under the Australian Consumer Law – characterisation of the ‘event’ for the purposes of r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – whether ‘successful’ party should be wholly or partly disentitled to its costs
Legislation Cited: Aged Care Quality and Safety Commission Rules 2018 (Cth)
Civil Procedure Act 2005 (NSW), ss 56, 57, 60
Competition and Consumer Act 2010 (Cth) Schedule 2 – Australian Consumer Law, ss 60, 61, 237, 243, 267, 268
Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.1
Cases Cited: Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685; 1 WLR 395 at 401
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No. 2) [2024] NSWCA 21
Man Hay Lau v Anglican Community Services [2025] NSWDC 193
Mid-City Skin Cancer and Laser Centre v Zahedi-Anarak [2006] NSWSC 1149
Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 (S)
Ng v Chong [2005] NSWSC 385
Oshlack v Richmond River Council (1998) 193 CLR 72
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No. 3) [2017] FCAFC 102
State of NSW v Stevens (2012) 83 NSWLR 106
Texts Cited: D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, Thomson Reuters, 2018)
Category: Costs
Parties: Mr Man Hay Lau (Plaintiff)
Anglican Community Services (ABN 39922848563) (Defendant)
Representation: Counsel:
Mr M Klooster (Plaintiff)
Ms A Elizabeth (Defendant)
Solicitors:
Longton Blackwell (Plaintiff)
Barry Nilsson (Defendant)
File Number(s): 2023/00424282
Publication restriction: Nil
On 28 May 2025 I delivered reasons [1] for my decision that there be judgment for the plaintiff (Mr Lau) against the defendant (Anglicare) for $200, a sum representing nominal damages, arising from two breaches of a contract between Anglicare and the deceased, the late Mrs Betty Wai Chan (to whom I referred in the Reasons, and to whom I now refer with no disrespect in these reasons, as ‘Betty’) entered into in October 2021. Mr Lau, Betty’s husband, commenced the proceeding as Betty’s representative on 23 November 2023.
In recognition of certain unusual features about this litigation, I deferred consideration of the question of costs; and set out a timetable for the parties to adduce evidence and make submissions on that topic. That evidence and those submissions have now been received.
These reasons consider and determine the costs consequences flowing from the determination of the substantive outcome. These reasons assume the reader’s familiarity with the Reasons delivered on 28 May 2025.
Anglicare’s position is that Mr Lau should pay its costs of the whole of the proceedings. The ordinary basis for such order should be modified, in Anglicare’s favour, so that Mr Lau should pay a portion of its costs on an indemnity basis due to the circumstance of Mr Lau not accepting certain offers of settlement.
Mr Lau’s position is that he should be paid his costs by Anglicare on the ordinary basis, if not entirely, then at least for 50% of them.
In the ‘Introduction’ section of the Reasons, I briefly alluded to some of the background prior to the litigation. This included the circumstance that Mr Lau had brought certain complaints about Betty’s treatment to the Aged Care Quality and Safety Commission (the Commission) on 18 January 2021. A determination was made by a delegate of the Commission. Mr Lau sought a reconsideration of it but the delegate’s decision was affirmed. I inferred that it was Mr Lau’s dissatisfaction with the outcome of the Commission’s investigation that influenced his decision to commence the proceeding in this Court.
At the hearing, the reasons for the Commission’s decision were in evidence. However, the parties debated the admissibility of those reasons. In the end, they played no role in the Court’s decision-making. I alluded to them in the Reasons for limited purposes, not only as contextual circumstance for why the litigation commenced at all, but also because they had some relevance to my consideration of Mr Lau’s application for a court-ordered apology.
In one of two affidavits affirmed by Mr Darrell Kake, of Longton Blackwell, the firm representing Mr Lau, in the present costs dispute, the deponent referred to certain documents preceding the commencement of the proceeding referred to in an affidavit of Tinashe Makamure. Mr Makamure’s affidavit was not read at the hearing and the exhibits to his affidavit were not tendered. Mr Kake referred to only parts of Mr Makamure’s affidavit.
Part of Mr Makamure’s affidavit provided greater detail as to what occurred with Mr Lau’s complaints to the Commission. The gist of the part of his affidavit that was referred to was as follows. Between January 2021 and December 2024, Mr Lau lodged complaints with the Commission. Mr Makamure deposed to his view that many of them raised the same issues as were raised in this court proceeding. He further deposed that Anglicare provided responses to each of his complaints. He also deposed that Mr Lau had sought, apparently on multiple occasions, reviews of outcomes determined by the Commission.
One of the exhibits to his affidavit was all documents of the Donald Coburn Centre (TDCC) relating to Betty’s care that were given to Mr Lau’s lawyers in July 2023. These amounted to about 1,470 pages. Another exhibit was a composite bundle of Mr Lau’s complaints, Anglicare’s responses to the complaints, and the Commission’s decision on the accreditation of TDCC. These were said to amount to about 400 pages.
I will return to the significance of these circumstances further below.
Mr Lau had a large number of complaints about the services supplied to Betty in the period it supplied respite care to her, and thereafter services to her as a resident of the TDCC in Castle Hill over a period of approximately nine months before Betty was discharged and entered a different facility. Anglicare conservatively tallied that there were about 14 complaints as at the date that the statement of claim was amended on 19 September 2024. (In its submissions in reply, Anglicare became somewhat more granular as to the number of complaints.) Mr Lau said that there were only nine asserted breaches.
By his amended statement of claim, under the heading ‘Relief claimed’, Mr Lau sought two substantial prayers for relief. The first was an order for damages. At paragraph 23 of his amended pleading, Mr Lau alleged that by reason of the serial breaches of contract, Mr Lau suffered, or was likely to suffer, loss or damage, being the sum of $37,150.28. At paragraph 23, there was a further intimation that ‘further particulars’ of loss and damage might be given after Mr Lau’s invocation of pre-trial processes. Mr Lau also brought a cause of action in negligence in which the loss or damage was identified as the same loss or damage asserted to have been caused by the breach of contract. Finally, he also brought an unliquidated claim for compensation under s 267 of the Australian Consumer Law (ACL). This was based upon pleaded contraventions of the consumer guarantees in ss 60, 61(1) and 61(2) of the ACL*.*
The second prayer for relief was an order for Anglicare to apologise to him for the treatment of Betty. This latter form of relief was not based on any entitlement under the common law but rather, was said to be sourced in s 243 of the ACL.
On 11 June 2024 Barry Nilsson sent a letter to Mr Lau’s solicitors. This letter was also sent prior to Mr Lau filing his amended statement of claim.
The terms of the offer contained in the letter were such that it purported to be a rules offer (as per r 20.26 of the Uniform Civil Procedure Rules), although alternatively, it was relied upon as a Calderbank offer. The terms of the offer were:
“(a) The Proceeding is dismissed.
(b) No order as to costs.”
The offer was open for acceptance until 9 July 2024 (being 28 days). Within the letter there was ‘commentary’ about the (lack of) merit in Mr Lau’s claim. Amongst other things, an assertion was made that the Aged Care Quality and Safety Commission had investigated two of the complaints Mr Lau had made in 2021 and 2022 and there was no reason to think that the Court would reach any different conclusion to the Commission’s conclusion that there had been no wrongdoing.
Also on 11 June 2024, Anglicare’s lawyers sent an open letter which set out Anglicare’s reasons for refusing to consent to an extension of time for Mr Lau to serve his evidence. Annexed to that letter was a procedural chronology which, amongst other things, stretched back in time to events before the commencement of the suit on 23 November 2023. Some of this was not in evidence in the hearing. It indicated, relevantly, that Mr Lau had made two complaints with the Aged Care Quality and Safety Commission (19 January 2021 and 14 January 2022) and that Mr Lau had requested reviews of those decisions (and attempts to obtain documents relating to the Commission’s decision-making).
As already indicated, on the costs dispute, Mr Lau relied upon two affidavits of his solicitor, Mr Darrell Kake. One was dated 4 June 2025. The other was dated 5 June 2025.
In Mr Kake’s latter affidavit, he set out in detail all of the communications passing between the lawyers for both sides for arranging a mediation. In the end the mediation did not come to pass. It appears from Mr Kake’s second affidavit that there were issues as to whether the mediator should be a Registrar, or Assistant Registrar of the Court. Then, on 19 February 2025, Dicker SC DCJ made an order referring the dispute to mediation no later than 17 April 2025 (about a week before the scheduled hearing date). There were then difficulties in finding a mutually convenient date or dates. Mr Lau’s lawyers made assertions about their attempts to conduct a mediation since December 2024. It is not apparent, however, whether such complaints as Mr Lau or his lawyers had of Anglicare in failing to cooperate to facilitate a mediation after Judge Dicker SC made the referral on 19 February 2025 were subsequently brought to his Honour’s attention, or that of the List Judge before the hearing.
On 25 March 2025, Anglicare’s lawyers sent correspondence to Mr Lau’s lawyers. By this date, Mr Lau had amended his statement of claim. As occurred on 11 June 2024, the correspondence doubled as a purported rules offer and a Calderbank offer (in the alternative).
The terms of Anglicare’s Calderbank offer (expressed to be without admission of liability) to settle the claims were as follows:
“(a) Our client will pay to your client an amount in the sum of $5,000 to be characterised as general damages; and
(b) Our client will provide a statement of regret to your client in the manner proposed in Schedule ‘A’ of the Deed.”
“(a) The Proceeding is dismissed;
(b) No order as to costs”.
The offer was open for Mr Lau’s acceptance until 5pm on 4 April 2025, a period of 10 days. The commencement date for the hearing was 28 April 2025.
The letter of 25 March 2025 also enclosed a proposed Deed of Release. It is in schedule 1 to that proposed Deed of Release that Anglicare’s offer of a statement of regret was set out. The material part of that was as follows:
“We acknowledge that, despite the best efforts of our staff, you were dissatisfied with the service that Ms Chan, and by extension you as her power of attorney, received while she was a resident of the Centre. We have reviewed your concerns and, while our staff acted with due care and diligence, it is regrettable that this did not meet your expectations.
Bearing this in mind, we wish to express our disappointment that you have been left with a negative view of our services.
….”
On the first day of the hearing (28 April 2025), Mr Lau abandoned his claim for relief for an order for substantial damages, for breach of contract and negligence; as well as his claim for compensation under s 267 of the ACL. After the close of the parties’ cases, he also abandoned his allegations regarding a non-compliance with the consumer guarantees in ss 61(2) and (2) of the ACL.
Instead, on the first day of the hearing, Mr Lau said he claimed nominal damages for breach of contract and for a court-ordered apology under s 243 of the ACL; the latter relief centred upon alleged non-compliances with the consumer guarantee in s 60 of the ACL (the ‘care guarantee’) based upon the same factual matrix as the action for breach of contract.
Anglicare denied all asserted breaches of contract, and therefore any entitlement in Mr Lau to even nominal damages, and also denied any entitlement in him to obtain a court-ordered public apology for the treatment of Betty.
Earlier in these reasons, I referred to Mr Makamure’s affidavit of 25 April 2025, which was filed on the first day of the hearing, 28 April 2025 (at 2:31pm). This was after opening addresses by Counsel for both parties that morning; an important feature of which was Counsel for Mr Lau’s indication of the modified relief that his client sought at the hearing. I referred briefly to the content of Mr Makamure’s affidavit in terms of its indication of the defendant’s intention to rely upon a large volume of documents created prior to the commencement of the proceeding that generally concerned Mr Lau’s complaints to the Commission.
In his first affidavit on the current application (4 June 2025), Mr Kake did not dispute that the 1,400 pages which Mr Makamure had identified in his affidavit as being TDCC’s records had been provided to the plaintiff’s lawyers in or around July 2023. He deposed however that he did not have the time to go through and check the accuracy of the allegations made by Mr Makamure. He also deposed that the additional documents concerning Mr Lau’s complaints were given to him on 25 April 2025 for the first time and that he did not have time to go through them as the hearing was imminent.
Ultimately, Mr Kake deposed that only a selection of all this material was included within Anglicare’s main documentary tender, Exhibit 1.
In the result, as indicated, Mr Lau succeeded in obtaining an order for nominal damages, in the sum of $200, based upon two findings of breaches of contract (there were three findings of non-compliance with the care guarantee), but he failed in his action for relief by which he sought a court-ordered apology.
In relation to the application for an apology, the Court found that although it had jurisdiction to adjudicate on the availability of that relief, in the circumstances of the case, the Court was not empowered to grant the relief under ss 237 and 243 of the ACL and, even if it was so empowered, the Court would not grant that relief in its discretion. It is pertinent to note that one of the (many) reasons why the Court determined that a court ordered apology was inappropriate was the circumstance that by obtaining an award of nominal damages, Mr Lau did achieve a measure of vindication. It is also pertinent to note that in the Reasons, it was pointed out that in the event that Anglicare (privately) apologised to Mr Lau for breaches of contract, that apology could not be taken to amount to an admission of liability (however it was expressed). On the other hand, another reason, relevant to both the questions of the Court’s power to order a public apology and alternatively its discretion, was the circumstance that the remedy had not been sought from the Aged Care Quality and Safety Commission (or the Australian Competition and Consumer Commission or its state equivalent).
Anglicare submits that costs should follow the event. That rule of court reflected the concept that costs be paid in a way that is fair, having regard to the Court’s assessment of the responsibility of the parties in incurring costs.
The ‘event’ was not whether or not Mr Lau would recover nominal damages. The event was more properly characterised as to whether he would recover substantial damages, under general law, or through a claim for compensation under s 267 of the ACL. At least that was the case until the first day of the hearing.
Even if, contrary to Anglicare’s submission, Mr Lau’s receipt of nominal damages could, in principle, be a ‘peg on which to hang costs’, he could not be regarded as being a ‘successful’ party. This was so in the context that until the first day of the hearing, Mr Lau sought an order for substantial damages.
Anglicare submitted further that even if Mr Lau could be considered to have been the successful party, for multiple reasons, his conduct was such that he should be disentitled from receiving a costs order in his favour. Anglicare principally cited his abandonment of his claim for damages; and certain causes of action (the negligence action and, I interpolate, the actions for non-compliance with the purpose and result consumer guarantees as well). If those actions or claims had not been brought, Anglicare might have run its case differently.
Separate to its assertion of disentitling conduct by Mr Lau, Anglicare also argued that, as a matter of fairness, it should not be exposed to any liability in costs. It had shown that it had tried hard to settle the proceedings on multiple occasions, whereas Mr Lau appeared bent upon vindication for “some perceived but unquantifiable wrong” and had made an “unreasonable request” (such as the apology he sought). Anglicare also argued that, whilst not seeking to trivialise the breaches of contract that were found by the Court, Mr Lau’s pursuit of vindication in relation to them came at a cost that was disproportionate to the value of the proceeding in the absence (ultimately) of any loss or damage being established. Mr Lau’s quest, in short, served no ‘social utility’ and this was especially so where issues had already been considered by the Commission.
Mr Lau contends that the practical result of the litigation, and hence the event, is that he vindicated Betty’s legal rights. Anglicare acknowledged as much in its submissions on costs. Mr Lau had made many complaints to the Commission, which led the Commission to institute an investigation. Those complaints were determined by the Commission and Anglicare had pointed out at the hearing that it had not identified any non-compliance with the relevant legislation, but even if it had, the Commission did not regard the non-compliances to amount to ‘major failures’. [2] In contrast to the outcome of the Commission’s investigation, the Court has found that three of the complaints Mr Lau had raised gave rise to a breach of the Charter of Aged Care Quality Standards. I understood Mr Lau to submit that it followed from the result that the Court found in Mr Lau’s favour on three of the complaints that the Commission had not carefully considered them. He has now been vindicated by the Court’s Reasons. That constitutes the relevant ‘event’ even if he did only obtain nominal damages. It is up to Anglicare to persuade the Court why the usual order reflected in r 42.1 should not apply.
Mr Lau submits that this is not a case where any disentitling conduct by him should militate against the application of the usual order. It is not a case where he brought a proceeding which he knew had no real prospects of success. Whilst he abandoned certain claims, it is important, when considering whether he engaged in ‘disentitling conduct’ to carefully distinguish claims that were hopeless from those which were arguable. Parties and their lawyers (all of whom are subject to procedural obligations under s 56 of the Civil Procedure Act 2005 (NSW)) should not be penalised by a prospective costs liability if unwinnable points are abandoned late in the piece.
Mr Lau also submits that his rejection of settlement offers was not a reason for altering the operation of the usual order under r 42.1.
Mr Lau separately made other criticisms of the settlement offers. This was on the premise that the offers should be considered in the context of his entitlement to a costs order; assuming that the Court accepted the predicate argument that the ‘event’ was whether or not he might be vindicated.
Anglicare said it was inaccurate to say that Mr Lau vindicated Betty’s rights. More accurately, he vindicated his belief that the contract had been breached.
Anglicare joined issue with Mr Lau’s criticisms as to the validity of the 11 June 2024 rules offer. So too, the 25 March 2025 rules offer was valid. As to the last in particular, although Mr Lau complained about late notification of documents that Anglicare might rely upon, he should have expected, or anticipated the possibility that some of the ones helpful to Anglicare’s case might be put to him in cross-examination. He was not in a position to complain about a lack of time.
As to the Calderbank offer of 25 March 2025, Mr Lau did not obtain a more favourable result than the payment Anglicare offered him. To the extent that he obtained findings on breach, they benefited no one but himself, and they only amounted to technical breaches not giving rise to damage.
If, contrary to Anglicare primary submission, any apportionment is to occur, by its calculations, Mr Lau’s ‘success’ on issues was much more minor than what his submissions had suggested.
The parties agree that costs should follow the event. They disagree as to what that ‘event’ was.
In Mid-City Skin Cancer *and Laser Centre v Zahedi-*Anarak [2006] NSWSC 1149, Campbell J observed at [47]–[52]:
“… Since the Judicature Act in England, the award of costs has been discretionary: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 85–86 per Gaudron and Gummow JJ. A significant factor taken into account in exercise of that discretion is who is the successful party.
In an action for breach of contract, if a plaintiff establishes liability, and obtains an order for payment of nominal damages, that plaintiff is usually not to be regarded as the successful party in the action: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874; Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [98] per McHugh J; Ng v Chong [2005] NSWSC 385.
Stephenson LJ in Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 at 401 explains that costs should be awarded against a plaintiff who has obtained an order for nominal damages because the award of nominal damages:
“… was not the event at which the plaintiffs were aiming. They were aiming at £82,500, and the mere fact that they ultimately got something — token or nominal damages — does not enable me to regard them as remaining successful plaintiffs.”
As Spender, Nicholson and Finn JJ said in Nexus Minerals NL v Brutus Constructions Pty Ltd & Kozyrski (Full Federal Court, 10 September 1997, unreported) at 12:
“An award of nominal damages ought not today be regarded as a ‘peg on which to hang costs’: cf Beaumont v Greathead (1846) 2 CB 494 at 499; see McGregor on Damages, para 404–para 405, Sweet & Maxwell, London, (1988, 15th Ed); see also Burrows, Remedies for Tort and Breach of Contract , 269–270, Butterworths, London (2nd ed 1994).”
As with all questions of costs, the ultimate decision must be made by reference to the facts of the individual case. One circumstance that Hamilton J in Ng v Chong [2005] NSWSC 385 at [8] regarded as possibly justifying an award of costs in favour of someone who recovered nominal damages was when “ some other right is vindicated by the judgment, eg*, the establishment of a legal right irrespective of whether any substantial remedy is obtained.”*
His Honour repeated those observations in his Honour’s later judgment in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39 (“Rockcote”) at [100]. McColl JA and Handley AJA agreed with Campbell JA’s judgment in Rockcote*.*
In State of New South Wales v Stevens (2012) 83 NSWLR 106 (“Stevens”) at [22] McColl JA repeated (again approvingly) those observations. Ward JA (as the President then was) and Sackville AJA (specifically at [59]) also specifically approved Campbell J’s observations. His Honour’s observations were thereafter also approved by the Court of Appeal in Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No. 2) [2024] NSWCA 21 at [13].
In Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 (S), the Court of Appeal of the Supreme Court of Western Australia said at [8]–[10]:
“[8] But it does not follow that a party which is awarded nominal damages is entitled to an order for the costs of the proceedings. The question is whether a party that is awarded nominal damages is to be regarded as the successful party. ...
….
[10] While each case must depend upon its own facts, where it is not a primary purpose of proceedings simply 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 a case, the party has obtained something of no real use to them and something which, if they had known it was all that was available, they would not have brought 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 substantively failed in the action.”
These observations were also noted approvingly by McColl JA in Stevens (at [22]) and approved in by the Full Court of the Federal Court of Australia in Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No.3) [2017] FCAFC 102 at [37].
A court is entitled to be circumspect when, after the outcome of litigation, the claimant who commenced the process contends that the result has fulfilled their purpose. That is an entirely subjective exercise which is beyond scrutiny.
Nevertheless, in my opinion, on balance, this is not the ‘usual’ case where Mr Lau has obtained something (nominal damages) of no real use to him and which, had he known that this was all that he would obtain, he would not have commenced the suit in the first place.
I recognise that Mr Lau did not claim nominal damages, but rather an order for substantial damages, in his originating process. [3] That claim, moreover was supplemented by a claim for pre-judgment interest which is premised as a claim for relief for being kept out of a sum of money.
But those formal claims are not antithetical to the notion that that the obtaining of an award of substantial damages constituted Mr Lau’s primary, or even predominant, purpose.
The context in the lead-up to the institution of the proceeding is critical. Mr Lau had been at war with Anglicare and, indirectly, with the Commission, for a considerable period of time before he commenced this lawsuit. For the purpose of addressing the issues in this cost dispute, as they had done at the substantive hearing, neither party referred me in detail to the precise complaints that Mr Lau had raised about Anglicare before the Commission or the Commission’s outcomes in respect to individual complaints, but it was sufficiently clear that Anglicare believed that: (a) Mr Lau was substantially seeking to litigate complaints that he had previously raised to the Commission (letter of 25 March 2025, sub-paragraph 3.1; paragraph 11 of Anglicare’s submissions in chief on costs) and (b) Mr Lau was bound to fail again in this proceeding: Anglicare described Mr Lau’s proceeding as “manifestly hopeless” (letter of 22 December 2023, sub-paragraph 1.2).
That Mr Lau commenced this suit at all was an indication of his determination, in the face of the Commission’s findings to the contrary, to establish that TDCC did mistreat his late wife in many different ways.
I would interpose briefly to indicate that if part of what drove Mr Lau’s desire for vindication was the processes or results in the Commission, and a desire to prove the Commission was wrong, then that would not be entirely fair to the Commission. The Court was not conducting a review into the merits or the legality of the Commission’s reasoning. There were different (stricter) standards of admissibility of evidence in this court proceeding than there were likely to have been in an investigation conducted by the Commission. [4] Nevertheless, to the extent that Mr Lau may have partly been driven to prove the Commission was wrong and belief that he could so in this Court, that misconception does not derogate from the intensity of Mr Lau’s quest for vindication.
I do not consider that Mr Lau’s refusal to accept the invitation to discontinue or the offer of settlements to be disentitling conduct. The rules, and principles associated with Calderbank offers commonly contain a requirement that the offeror prove that it obtained a result no less favourable than that which it offered to the offeree.
It is doubtful that this requirement is satisfied in the circumstances. Subject to consideration of the Calderbank offer of 25 March 2025, Anglicare’s offers of settlement were predicated on a view that Mr Lau would not likely obtain any benefit from his suit, other than removal from an exposure to a costs liability. However the latter prospective benefit was something which, for reasons explained, was not likely to persuade Mr Lau to abandon the litigation he commenced, as I have found, with the knowledge of that prospect. Anglicare’s projection that Mr Lau would not obtain a benefit has now been falsified.
The Calderbank offer of 25 March 2025 is in a different category; since it proposed a cash payment to Mr Lau as the price for the proceeding going away. But for someone like Mr Lau who was bent on vindication and, moreover, had an associated wish for public affirmation in the form of a court-ordered apology, that was no more likely to be effective as an inducement to resolve the proceeding than an offer to walk away with Mr Lau no longer bearing the risk of exposure to a costs order.
Anglicare raises an interesting point as to the lack of social utility served by Mr Lau’s quest for vindication, especially in circumstances where, it says, the Commission had considered the issues. Another way of interpreting its submission is that Anglicare is asking what more it could to do to make litigation which, of its nature was replete with reputational risk to it, go away when Mr Lau did not appear to be (primarily) commercially motivated. But short of a somewhat self-serving statement of regret in which no wrongdoing was acknowledged, Anglicare appeared to consider, by its 25 March 2025 offer, that it might purchase Mr Lau’s termination of the proceeding. In retrospect, this appeared to underestimate Mr Lau’s objectives. Courts exist, of course, for the resolution of disputes. Subject to an especially important qualification I am about to turn to, the effects of litigation upon other litigants or the community more generally, parties are entitled and regularly do litigate in what they perceive as their private interests. The application of principles or court rules as to costs should not turn on whether the motives of litigants in commencing or continuing litigation are socially desirable or otherwise. That would be a slippery slide in a democracy which adheres to the rule of law.
The other aspect of disentitling conduct, which was directly addressed in Mr Lau’s submissions, concerns the way in which Mr Lau conducted the litigation. Here Anglicare is on firmer ground, since a litigant’s conduct has real consequences for its opponent, the court system and other litigants. There is force in its submission that several of Mr Lau’s ‘claims’ were largely hopeless or not pleaded at all if, the expression ‘claims’ is intended to denote his asserted complaints of mistreatment.
**********
Man Hay Lau v Anglican Community Services [2025] NSWDC 193 (the ‘Reasons’).
This was an apparent reference to s 268 of the ACL.
See for example, the reasoning of the Full Federal Court in Romero at [103]. See also Ng v Chong at [9].
Although bound to observe procedural fairness in the exercise of certain of its functions, there appears nothing in the Aged Care Quality and Safety Commission Rules 2018 (Cth) (Part 2, Division 4), which relate to investigations of complaints, to indicate that the Commission is bound by rules of evidence.
Summarised in D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, Thomson Reuters, 2018), [10.67.020].
This authority was cited in State of NSW v Stevens (2012) 83 NSWLR 106 at [22] and Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No. 2) [2024] NSWCA 21 at [14].
Typographical error on cover sheet and corresponding footnote corrected; reference to 'provider' in paragraph 78 corrected to 'regulator'.
Lau
Anglican Community Services
(1998) 193 CLR 72
(2012) 83 NSWLR 106
It was patently obvious that Mr Lau, who was legally represented at all times, was establishing an extremely broad canvas of factual assertions of episodic mistreatment of Betty. This is a circumstance relevant to later arguments about the reasonableness of his prosecution of the proceeding. But for present purposes, that broad canvas of factual assertions is emphasised in the light of the modest quantum of monetary claim that he brought, being in the order of approximately $37,000. Money claims of that quantum fall within the civil jurisdiction of the Local Court of New South Wales. For all of this, I think Mr Lau, who struck me as an intelligent man, can be taken to have known that if he did not establish that TDCC was at fault in any respect, then he was exposed to the risk of a substantial personal costs order against him.
In my view it would be highly doubtful that a reasonable defendant in Anglicare’s position could have misapprehended that Mr Lau’s primary objective was to vindicate his fervent conviction that in many different ways, TDCC had mistreated his late wife, whatever it took and whatever was the risk of financial cost for him to do so. In this regard, it strikes me as being a semantic exercise whether he was seeking to vindicate Betty’s rights or his own belief in those rights. Whether he acted in the capacity as Betty’s representative or as principal in his own right is immaterial. Anglicare accepted he had standing to bring the actions in general law.
I also consider that his quest for vindication was likely stimulated further by Anglicare’s conduct in the proceeding. Although in some respects it made admissions in its Defence, it is fair to say that Anglicare did not really admit any fault, generally, or in relation to those complaints by Mr Lau which this Court upheld. By its written submissions in chief, Anglicare suggested that apologies of certain kinds were made to Mr Lau (footnote 11) but in my view these were meagre offerings. As I noted in the Reasons, it was also open to Anglicare to express a (private) apology for some breaches of contract without being taken to have admitted them at any hearing this proceeding. In retrospect, and with reference to some of the extrinsic material relating to Part 10 of the Civil Liability Act*,* [5] this case struck me as the sort of case that Parliament had in mind for the purpose of reducing the incidence of litigation being commenced or continued. There is of course no guarantee that had a (private) apology been made it would have deterred Mr Lau from commencing or continuing the litigation.
I do not wish to be taken as being critical of Anglicare’s conduct in these particular respects. It was up to Anglicare as to how it approached its defence. My point, to reiterate, is to indicate that by its conduct, Mr Lau was essentially met with stonewall resistance; which I infer further galvanised him in his pursuit for vindication.
It is unnecessary, in my view, to hold that vindication was Mr Lau’s sole objective. He did seek to recoup the sum of money he expended. He also sought a public apology from Anglicare. He failed in those two objectives.
They were, however, subordinated or ancillary objectives to his main objective in vindicating his sense of righteous belief that his late wife was mistreated in serial respects. In the circumstances, this is not a case where, to adapt what Stevenson LJ in Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 All ER 685; 1 WLR 395 at 401 said, “the event of an award of nominal damages was not the event at which the plaintiff was aiming”. [6] The event that he was aiming at was to prove that TDCC, for which Anglicare was responsible, mistreated Betty. The award of nominal damages, even if ‘tokenistic’ in financial terms, satisfied his pursuit of vindication.
In my view, the hearing itself, along with the proceeding generally, was made more protracted by Mr Lau advancing barely tenuous complaints. Mr Lau did not establish or abandoned a significant preponderance of the complaints that he raised. Indeed, Mr Lau later purported to add complaints that had not earlier been pleaded. All of that needlessly built up legal expenses. He was entirely responsible for himself and Anglicare incurring unnecessary expense when that occurred.
I am mindful of a gradation or spectrum or scale between asserted breaches that are faintly arguable, to reasonably arguable and those which are virtually certain to succeed. I am also alive to the circumstance that it is not the role of a court to act in a way so as to filter only certain arguments or complaints for its adjudication.
With all of that, however, and with all respect to him, it was difficult to avoid the impression that by his conduct Mr Lau was using the Court process as a means to ventilate every grievance, large or small, that he had against Anglicare, no matter how serious or trivial in nature. He did so at the hearing in a context where he did not contend that the breaches caused the deceased harm, loss or damage (although his Counsel somewhat tentatively sought to suggest that some loss or damage did arise to support the statutory claim). Some breaches were, with respect responsibly, abandoned by Counsel for Mr Lau, but that was a reflection of the circumstance that they should not have been brought in the first place. Allegations about causing Betty to choke and administering incorrect medication were at the serious end; so serious that it appears that they might have given rise to potential criminal sanctions; and even jeopardising Anglicare’s accreditation. The positioning of Betty’s eyeglasses was at the trivial end of the scale. None of those particular alleged breaches had any merit to found a breach of contract or a non-compliance with a consumer guarantee. That they (especially the serious breaches) were persistently argued and maintained made it inevitable that Anglicare would strenuously defend them.
Further, I do not find persuasive that the outcome of these individual complaints only became predictable when Anglicare gave late notice at the hearing of its intention to rely upon evidence. By then, the parties had already been in substantial disputation through the course of the Commission’s investigation. Each party was, or is taken to be, well aware of their opponent’s position and evidence on each of the key complaints.
It appeared that Mr Lau was asking the Court to function as a roving investigative commission, albeit under stricter rules of evidence, after he was dissatisfied with the results of the investigation conducted by the aged care regulator. There was an absence of restraint or discrimination in the breaches of contract or non-compliances with consumer guarantees that he agitated. It was a course that endured until his Counsel, acting responsibly, abandoned many of them in his final submissions.
I am mindful of the observations of the Court of Appeal in the Supreme Court of Western Australia in Motium, in the last sentence of paragraph 10, cited earlier in this judgment*.* There is a concern that once a claimant gets into their head the notion that all they are seeking is vindication, and that they might achieve it by proving only one or few breaches among an assortment of asserted breaches, irrespective of whether or not they were causative of loss or damage or entailed any other tangible consequence, there can develop a tension between the litigant’s rights to commence and to continue litigation and the obligation upon the Court in s 56(1) of the Civil Procedure Act to “facilitate the just, quick and cheap resolution of the real issues in the proceeding”. Specifically, part of that involves the management of civil proceedings in a way that has regard to the efficient disposal of the business of the court, and the efficient use of available judicial and administrative resources (ss 57(1)(b) and (c)) and the need to resolve disputes which is proportionate to the importance and complexity of the subject matter (s 60).
I do not raise these matters to suggest that Mr Lau, or his lawyers, were in breach of their obligation under s 56(3). I do so only from the narrower viewpoint of considering whether having regard to what occurred at the hearing, and the outcome in the Reasons, there should be some modification, or dispensation of the general position, acknowledged by the parties in their submissions on the costs dispute, that the Court will not lightly reduce the successful party’s costs by reference to an apportionment exercise or for other reasons.
As was also acknowledged in the Reasons, the Court does not doubt Mr Lau’s sincerity nor underestimates or wishes to understate the extent of his grief at the loss of his life partner. But a litigant, especially one that was represented, as Mr Lau was, who embarks on a strategy of raising and trying to prove a large and indiscriminate list of breaches may face a challenging task in persuading a Court why they should not be accountable in some way for that forensic course if their success is, objectively, relatively minor. That is because one consequence of that approach to litigation is necessarily to force the opposing party to incur substantially more costs than if his approach had been more streamlined. Another consequence is that by causing overly protracted proceedings, the Court’s administrative and judicial resources are taken away from the resolution of other litigants’ disputes.
Whilst it did not successfully defend all allegations of breaches, Anglicare did successfully defend the vast preponderance of them and it also succeeded in its opposition to the application for a court-ordered apology. Indeed it received its own measure of vindication when it had all of the money claim, the cause of action in negligence and the relief Mr Lau claimed under the statutory action, dismissed.
In the circumstances, I consider the appropriate outcome is that Anglicare pay 35% of Mr Lau’s costs.