Mahmoud v State of New South Wales

Judgment 1HIS HONOUR: I published reasons for judgment in this matter on 4 December 2013: see Mahmoud v State of New South Wales [2013] NSWSC 1785. I left open for further consideration the question of whether or not Mr Mahmoud may have been entitled to interest upon such portion of the judgment sum as was still unpaid after 28 December 2012 in reliance upon s 101(3) of the Civil Procedure Act 2005. 2By the time the matter returned to me on 2 May 2014, Mr Mahmoud had furnished me with further detailed submissions upon which he proceeded at some length to elaborate. Unfortunately, neither Mr Mahmoud's written submissions nor his argument in open court addressed the limited issue upon which I was prepared to hear further submissions. Indeed, as the transcript will reveal, Mr Mahmoud remained committed to an enthusiastic reaffirmation of his opinion that my original decision was wrong. 3It is unnecessary for present purposes to review in any detail the terms of my original decision, the conclusions that I reached or the reasons for doing so. It is sufficient to observe that nothing presented to me or relied upon by Mr Mahmoud causes me to have any doubt that he is not entitled to interest in the events that have occurred. Specifically, I am not satisfied, upon the basis of any evidence tendered or submissions advanced by Mr Mahmoud, that I should order in accordance with s 101(3) of the Civil Procedure Act that he is entitled to interest on the judgment sum notwithstanding the fact that it was paid in full by the defendants within 28 days after the date upon which the judgment took effect. I am not satisfied that I should order to the contrary as contemplated by that sub-section. 4I observe that Mr Mahmoud had contended that it was part of his agreement with the Crown Solicitor's Office that his settlement monies would be paid "before Christmas", which he suggests the defendants described as "a sweetener". A number of things should be noted about this. First, the offer to settle the proceedings was made as an offer by both defendants and accepted on behalf of Mr Mahmoud by his solicitor Mr Byrnes. The offer was expressed to be open for a period of 28 days but contained no reference to any timeframe within which the settlement monies would be paid if it were accepted. Presumably the defendants accepted that they were bound to pay the settlement monies within 28 days of the judgment taking effect or face the prospect of a claim for interest. The monies were in fact paid within that timeframe. 5Secondly, there is no evidence that either of the defendants agreed to a term that the settlement monies would be paid "before Christmas". Mr Mahmoud's reference to what seems to be a reconstructed email to him from Mr Byrnes (see annexure "J" to Mr Mahmoud's affidavit sworn 29 October 2013) appears only to refer to Mr Byrnes saying to Mr Mahmoud that he (Mr Byrnes) reminded Ms Tan at the Crown Solicitor's Office that the understanding was that Mr Mahmoud would receive his money before Christmas. There is no evidence that such an understanding ever became elevated to a legally enforceable obligation. 6Thirdly, but in any event, the portion of the settlement monies coming from the Crown Solicitor's Office, being $58,474.30, was in fact paid to Mr Byrnes by a cheque for that amount dated 24 December 2012. Mr Byrnes' reconstructed email to Mr Mahmoud dated the same day states, "I confirm as requested that the cheque (dated 24 December 2012 from the State Crown Solicitor) was received by me today by courier". The email went on to say, "I confirm that you called in and collected it." 7None of this material supports Mr Mahmoud's claim that I should make a special order in his favour for interest, even though the full amount of the settlement was paid to him within 28 days of the judgment. 8In anticipation of a conclusion favourable to them, the defendants each argued that they should be entitled to orders for costs. Mr Bateman of counsel for the first defendant sought a specified gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act. He relied in that respect upon the affidavit of Sarah Wyatt sworn 12 December 2013. Mr Ahmad for the second defendant also sought an order for costs on the same basis. He relied in that respect upon the affidavit of Peter Bennett sworn 9 April 2014. 9Mr Mahmoud protested that these applications were wholly, or at least in part, matters of surprise to him. Whether or not that perception was correct, I gave Mr Mahmoud an opportunity to furnish me with written submissions limited to the question of costs within 28 days if he chose to do so. In due course his written submissions were provided to me and I have taken them into account in forming my views about what, if any, costs orders should be made. It therefore becomes necessary to refer to these submissions in some detail. 10Mr Mahmoud's submissions are divided into sections. Section "A" is headed "The payment of interest". It reiterates the claim for interest that I have disposed of in my earlier judgment. Consistently with what I have indicated so far, I do not intend to re-visit that issue. 11Section "B" of Mr Mahmoud's submissions is headed "The order for assessment". I take that to be a reference to paragraph 2 of the consent judgment that provided for the payment of his costs of the proceedings "as agreed or assessed". [Mr Mahmoud correctly observed that in my earlier judgment I misquoted the terms of the order by substituting "taxed" for "assessed". Nothing turns on that for present purposes]. 12On 2 May 2014 Mr Mahmoud handed up in court a document styled "Short minutes of order". I took that document to be an encapsulation of the orders for which he proposed to contend on the day. Proposed order 5 was as follows: "5 That pursuant to s 98(4)(a) of the Civil Procedure Act 2005 the costs of the plaintiff in this case be assessed by an assessor on an indemnity basis under the Costs Management Scheme NSW as this is an imperative procedure as an assessor requires a Court order that costs be assessed by an assessor as the matter has been resolved and settled outside court by the only mean [sic] of a Compromise Offer made by the defendants and accepted by the plaintiff on 30 November 2012." 13Mr Mahmoud now seeks an order that the costs of the proceedings anticipated by the costs order made in his favour by consent should be elevated to an order for indemnity costs. There is no agreement by the defendants to that course. Nor does Mr Mahmoud provide any evidentiary or discretionary basis for such an order. Mr Mahmoud appears to have conflated the defendants' response to his claim for interest on the settlement sum with conduct generating an entitlement to costs on a particular basis for the whole proceedings. There is simply no relevant connection between the two. I am not prepared to order that the defendants pay Mr Mahmoud's costs on an indemnity basis. 14Section "C" of Mr Mahmoud's submissions is headed "Costs". The burden of Mr Mahmoud's submissions on this point appears to be first, that the defendants, who seek an order for costs of and incidental to the limited issue relating to Mr Mahmoud's unsuccessful claim for interest, are precluded from doing so because, in effect, the costs order made by consent in his favour and enshrined in the consent judgment, covers the field. Secondly, Mr Mahmoud challenges the itemised legal work particularised by the defendants in support of their claim for a specified gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act. 15Mr Mahmoud's first contention is wrong. The original costs order was clearly made with respect to the costs of the proceedings incurred up to and including the making of the costs order. There is no basis in the particular circumstances of this case or generally for limiting the defendants' right to seek costs generated by legal work incurred in the course of the resolution of subsequent disputes in the proceedings. Mr Mahmoud's claim for interest was just such a dispute. Mr Mahmoud was unsuccessful in that contest. I consider that the costs of Mr Mahmoud's unsuccessful application should follow the event. 16Mr Mahmoud's submissions on costs did not address the gross sum costs order question at all. His general submissions on costs were, however, based upon an underlying theme that his entitlement to an assessment of his costs was important to him and not something to be taken away lightly or otherwise disregarded. His concerns were redolent of the assertions made by the appellant in Hamod v State of New South Wales and Anor [2011] NSWCA 375. Beazley JA dealt with this contention at [821] as follows: "[821] [The appellant's] principal complaint, that he was denied his fundamental right to have the costs of the respondents assessed in a formal costs assessment process, is, with respect to the author of the submissions, misconceived. There is no such fundamental right. The award of costs in proceedings before the Court is governed by the Civil Procedure Act, s 98 and the UCPR, in particular, Pt 42, Div 1. Section 98(4) gives express power to the court to make an order for specified gross sum costs. Having regard to the express power conferred by s 98(4), Mr Hamod's principal submission must be dismissed outright." 17In that case the Court of Appeal upheld an order made by the trial judge that, in the circumstances of the case, a specified gross sum costs order should be made: see generally Hamod at [777] - [827]. Without descending into the clear and commendable detail of her Honour's judgment in that case, it is sufficient to observe that that case was in very significant respects entirely different from the present. At the most fundamental level, it seems to me that, far from saving time and costs, which is an important consideration in assessing the merits of a s 98(4)(c) application, the making of such an order is likely to have the completely opposite effect. I am also not satisfied, having regard to the scope and content of Mr Mahmoud's written and oral submissions, that he has in fact come to terms with the nature of the application that the defendants are seeking to promote. He certainly has not referred to it in terms. In the circumstances I consider that there may well be some unfairness to Mr Mahmoud if I made the order sought. In particular, Mr Mahmoud has submitted that some of the legal work particularised by the defendants as work that he should be ordered to pay for, is not in fact legal work for the cost of which he should be liable. I am presently unable in an informed or principled way to resolve that dispute. It is an issue, along with others, that must be left to a costs assessor in due course. If the defendants ultimately choose to pursue the costs order that I have foreshadowed, they will have to have their costs assessed in what I strongly suspect Mr Mahmoud would characterise as the usual way. 18Finally, section "D" of Mr Mahmoud's submissions is headed "The miscarriage of justice in your judgment of 4 December, 2013". This section is by far the longest in Mr Mahmoud's submissions and is for reasons that I trust will by now be obvious, wholly irrelevant to any matter that I am asked to consider. These submissions reiterate Mr Mahmoud's dissatisfaction with my earlier decision, peppered with intemperate and offensive remarks about my apparent views of Mr Mahmoud's religion and ethnicity. The submissions are not germane to any current issue before me. I do not propose to deal with them in any way.