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[2026] NSWSC 989
Supreme Court of NSW
2026-08-11
Coleman J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mitchell v Roads and Maritime Services (now known as Transport for New South Wales) (No 4) [2026] NSWSC 989
Hearing dates: 13 July 2026, 22 July 2026
Date of orders: 13 July 2026, 22 July 2026
Decision date: 11 August 2026
Jurisdiction: Common Law
Before: Coleman J
Decision: Orders made 13 July 2026
(1) The 2-day Hearing listed Monday, 13 July 2026 and Tuesday, 14 July 2026 is further adjourned for Hearing on Wednesday, 22 July 2026 at 10am with an estimate of 1 day.
(2) The Applicant is to file any additional evidence and submissions in support of the substitution application by 4pm Wednesday, 15 July 2026.
(3) The Plaintiff and First Defendant are to file any additional evidence and submissions in reply by 4pm Friday, 17 July 2026.
(4) The Applicant, Mr Cappello, is to pay the Plaintiff and the First Defendant’s costs thrown away by reason the adjournment such costs to be assessable and payable forthwith.
Orders made 22 July 2026
(1) The Notice of Motion dated 2 March 2026, filed 4 March 2026 by Rosario Cappello, is dismissed.
(2) The Plaintiff and First Defendant are to file and serve any evidence and submissions as to costs of the Substitution Motion by 4pm Friday, 7 August 2026.
(3) The Second Defendant and Applicant to the Substitution Motion are to file and serve any evidence and submissions with respect to costs of the application by 4pm Tuesday, 21 August 2026.
(4) The Plaintiff and First Defendant are to file and serve any evidence in reply by 4pm Tuesday, 28 August 2026.
(5) Subject to further order, the issues with respect to costs on the Substitution Motion are to be dealt with on the papers.
(6) Parties are granted liberty to apply with respect to Order 5 on 3 days’ notice.
Catchwords: PRACTICE AND PROCEDURE — application for adjournment — representative proceedings — substitution application — substitution applicant retaining new solicitors — new solicitors requiring additional time to assess evidential and legal matters and put on further evidence — whether matter should be dealt with on the material already filed without an additional adjournment — interests of all group members of representative proceedings — adjournment granted — motion dismissed
PRACTICE AND PROCEDURE — substitution application withdrawn — submissions made seeking time to put further submissions regarding costs orders — the Funder did not appear — costs to be dealt with on the papers
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Lewis v Philips Electronics Australia Ltd [2023] FCA 1486
Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27
Litigation Fund WCX Pty Ltd v Mitchell (No 2) [2025] NSWCA 33
Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67
Litigation Fund WCX Pty Ltd v Mitchell (No 4) [2025] NSWCA 106
Litigation Fund WCX Pty Ltd v Mitchell (No 5) [2025] NSWCA 149
Litigation Fund WCX Pty Ltd v Mitchell (No 6) [2026] NSWSC 341
McIntyre v Eastern Prosperity Investments Pte Ltd (No 4) [2002] FCA 1133
Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 2) [2024] NSWSC 1165
Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593
Mitchell v Transport for NSW [2022] NSWCA 141
Rozenblit v Vainer & Anor (2018) 262 CLR 478; [2018] HCA 23
Wilcox v Chapple [2024] NSWSC 1394
Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
Category: Procedural rulings
Parties: Darren and Rosaline Mitchell (First and Second Plaintiffs)
Roads and Maritime Services (now known as Transport for New South Wales) (First Defendant)
Litigation Fund WCX Pty Ltd (Second Defendant)
Rosario Cappello (Applicant on Substitution Application)
Representation: Counsel:
H Cooper (First and Second Plaintiffs)
AC Harding SC with JA Norton (First Defendant)
A Elizabeth (Applicant on Substitution Application – 13 July 2026)
K Ngo (Solicitor for Applicant on Substitution Application – 22 July 2026)
Solicitors:
Ironbridge Legal (First and Second Plaintiffs)
Crown Solicitor’s Office NSW (First Defendant)
Brown Ward King (Applicant on Substitution Application)
File Number(s): 2021/00088654
Publication restriction: Nil
These proceedings are representative proceedings which, regrettably, have an unfortunate procedural history. Darren and Rosaline Mitchell (the Mitchells) are the lead plaintiffs. There have been numerous judgments of this Court and the Court of Appeal dealing with interlocutory issues in these proceedings and associated common law division proceedings. In these proceedings, some of the judgments are not related to the preparation of the matter but deal with issues arising from a litigation funding agreement entered by the Mitchells and Litigation Fund WCX Pty Ltd (the Funder). [1]
It is beyond doubt that the relationship between the Funder and the Mitchells has irretrievably broken down, and the Funder will not provide any further funds for the prosecution of the representative proceedings. The associated proceedings in the Common Law Division are brought by the Funder suing the Mitchells for the return of the moneys advanced to them under the funding agreement, alleging the moneys are money had and received by the Mitchells. Those proceedings are presently stayed by reason of the Funder failing to pay $40,000 as security for costs of those proceedings (see Litigation Fund WCX Pty Ltd v Mitchell (No 6) [2026] NSWSC 341).
On 13 July 2026, I granted the applicant, Rosario Cappello, a brief adjournment of his application pursuant to s 171 of the Civil Procedure Act 2005 (NSW) (CPA) to be substituted as lead plaintiff in these proceedings. That application was made by Notice of Motion filed on 4 March 2026 (the substitution application). I allowed the short adjournment over the opposition of the Mitchells and the First Defendant. At the time, I asked whether any party required substantive reasons for my decisions to allow the adjournment. None did. Despite that, having regard to the history of the proceedings, I considered it appropriate to provide short reasons for doing so. These are those reasons.
Subsequently, the matter returned to Court on 22 July 2026, and further orders were made dismissing the substitution application and making orders for submissions with respect to costs. These reasons also deal with those additional orders.
The substitution motion was first sent to my chambers on 2 March 2026, the evening before I was to continue to hear several motions in each of the representative proceedings and the Common Law Division proceedings. Relevantly, in the representative proceedings, the Mitchells have filed a Notice of Motion seeking leave pursuant to s 173 of the CPA to discontinue those proceedings. That motion was being heard concurrently with a motion in the Common Law Division proceedings by the Mitchells to summarily dismiss those proceedings. There was also a motion by the Funder for dispensation from compliance with the provisions of r 7.1 of the Uniform Civil Procedure Rules 2005 so that the proceedings could continue without the Funder being represented by a solicitor, and to amend the Statement of Claim.
A significant amount of material had been filed by each party for the various motions to be determined. The motions were first before me on 5 December 2025. They were adjourned part-heard until 3 March 2026. There is no doubt that significant costs had been incurred in preparation for the hearing of the motions.
At the hearing on 3 March 2026, Mr Trevor Hall, solicitor from Hall Partners, appeared for Mr Cappello. After hearing from the parties I formed the view that it was appropriate to make directions for the hearing of the substitution application before determining the other part-heard motions. That was because if the substitution application was successful, the Mitchells’ motion to discontinue the representative proceedings would fall away. Further, it was confirmed by Mr Coshott, the sole director of the Funder (who was appearing with leave), that if the substitution application was successful the Common Law Division proceedings would not be pursued by the Funder.
I made directions on 3 March 2026 for the preparation of the substitution application as follows:
The Court orders:
…
Substitution Application
2. In respect of the Notice of Motion dated 2 March 2026 (but filed 4 March 2026) filed by Mr Rosario Cappello seeking that he be granted leave to be substituted as the representative plaintiff in this proceeding (Motion):
a. the applicant file and serve any additional evidence in support of the Motion by 20 March 2026;
b. any other party is to file and serve any evidence they intend to rely on in respect of the Motion by 17 April 2026;
c. the applicant is to file any evidence in reply by 8 May 2026;
d. the parties file and serve any submissions in relation to the Motion by 4:00PM on 29 May 2026.
3. The Motion, together with the balance of the Plaintiffs’ Amended Notice of Motion filed 12 September 2025 [2] (Discontinuance Motion), be listed for hearing on 1 July 2026 with an estimate of two days.
In compliance with those directions, the parties filed and served evidence and submissions on the substitution application. This included the following evidence filed and served on behalf of the applicant:
Affidavit of Rosario Cappello, sworn 20 February 2026;
Affidavit of Simran Kaur, sworn 2 March 2026;
Affidavit of Trevor Hall, 26 March 2026; and
Affidavit of Rosario Cappello, sworn 30 March 2026.
On 23 June 2026, Mr Hall filed a Notice of Intention to File Notice of Ceasing to Act for Mr Cappello. Mr Hall ceased to act for him on 30 June 2026.
On 1 July 2026, the matter came back before me for the hearing of the substitution application. Mr Cappello appeared self-represented. He read an affidavit of 29 June 2026. In that affidavit he said that he was not aware that Mr Hall was to cease to act for him until he received a copy of the email Mr Hall sent to my chambers on 23 June 2026. Mr Cappello said Mr Hall had raised a concern with him a few days before that the Mitchells had previously objected to Mr Hall acting for Mr Cappello in the representative proceedings. He said Mr Hall told him he would consider his position and let him know.
Mr Cappello said that he then consulted with the Funder and various firms of solicitors to see if he could obtain representation. He could not do so before the matter came back before this Court. Included in the solicitors he contacted was Mr Damian Ward from Brown Ward King who had not, by the time of the hearing on 1 July, responded.
At the hearing on 1 July 2026, Mr Cappello asked for an adjournment for a short period so that he could seek to engage another solicitor. Counsel for the Mitchells formally opposed the adjournment, noting that evidence had been filed on which the application could be determined. Counsel accepted, however, that a significant (if not determinative) factor in the substitution application was the difficulty in substituting Mr Cappello as lead plaintiff when he was not represented by a solicitor (see, for example, Lewis v Philips Electronics Australia Ltd [2023] FCA 1486 at [34]; Wilkinson v Wilson Security Pty Ltd [2022] FCA 756 at [24]; McIntyre v Eastern Prosperity Investments Pte Ltd (No 4) [2002] FCA 1133 at [27]).
I considered that Mr Cappello ought to have a short opportunity to seek legal representation. I made it clear, however, that absent exceptional circumstances, the matter would proceed on the next occasion, and it would not be satisfactory if he came along and said he was still waiting to hear from lawyers, or he needed more time to obtain representation. On allowing the adjournment I made the following directions:
The Court makes the following orders:
1. The 2-day Hearing listed today, Wednesday, 1 July 2026 and tomorrow Thursday, 2 July 2026 is vacated and in lieu thereof the matter is relisted for Hearing on Monday, 13 July 2026 at 10am with an estimate of 2 days.
2. The Plaintiff (and the Defendants if they wish) are to file and serve submissions (no longer than 3 pages) on the question of their standing to address the Court on the substitution application within 7 days, 4pm, Thursday, 9 July 2026.
3. The Funder may file submissions in response by 4pm on Friday, 10 July 2026.
4. Costs reserved.
On Friday 10 July 2026 at 6:36pm, my chambers received email correspondence from Mr Ward of Brown Ward King stating that they were instructed to act for Mr Cappello in the substitution application. The email enclosed an affidavit of Mr Damian Ward sworn 10 July 2026 (the Ward affidavit). In that affidavit, Mr Ward sets out the timing of the communications he had with Mr Cappello, whom he did not know and had not met. He had first been contacted by Mr Cappello on 25 June 2026 by email, but he did not respond.
Mr Ward said that on 3 July 2026, he received a further email from Mr Cappello repeating his request to act for him. Mr Ward contacted Mr Cappello in response and had a brief initial conversation regarding the matter.
On 7 July 2026, Mr Ward had a further conversation with Mr Cappello where he outlined the “nature of the matter… and issues involved which included an overview” of the discontinuance motion and the substitution application ([6] of the Ward affidavit).
On 8 July 2026, Mr Ward received an executed costs agreement confirming his “appointment to act for, on his behalf, on the Motions” ([7] of the Ward affidavit). Mr Ward continued:
…To the extent that this Court makes orders substituting Mr Cappello as the Plaintiff in these Proceedings, it is my intention (subject to receiving instructions from Mr Cappello) to continue to act for him in the Proceedings.
Mr Ward set out his instructions from Mr Cappello as to the withdrawal of Mr Hall as his solicitor and Mr Cappello’s subsequent attempts to obtain legal representation at [8] of the Ward affidavit. Mr Ward set out the documents he had received and reviewed. He said he received the court book for the various motions on the morning of 10 July 2026, noting it comprised 1,900 pages of material. He corresponded with the solicitors for the Mitchells, indicating he had not had time to adequately prepare and would be seeking a two-week adjournment when the matter went to court on 13 July 2026. The solicitors for the Mitchells wrote back, copying in the solicitors for the first defendant, stating that they would not be consenting to any adjournment, noting my comments on 1 July 2026 that the matter would only be adjourned in exceptional circumstances.
Mr Ward said that he had briefed counsel on 10 July 2026, but only for the purposes of attending court to make the adjournment application. He said he did not believe counsel would have adequate time to review the court books or confer with him, and he was not in a position to provide adequate instructions for the running of the substitution application.
Mr Ward said that he had reviewed the evidence filed in support of the substitution application ([15] of the Ward affidavit). He said having done so, he said he had “…formed the view that further evidence will be required from Mr Cappello in order to properly place his case before the Court…” ([16] of the Ward affidavit).
Mr Ward said that he had not had the opportunity to read the plaintiffs’ or first defendant’s evidence, but he had read their submissions. He observed they opposed the substitution application on “a number of grounds which have not been properly addressed” in the applicant’s evidence ([17] of the Ward affidavit). He did not identify the grounds which had not been addressed in the applicant’s evidence.
Mr Ward said that due to the complexity of the matters, he had not had adequate time to take instructions from the applicant or to supplement the evidence and prepare submissions on his behalf ([18] of the Ward affidavit). He said if an adjournment was granted, he intended to undertake the following steps to supplement the applicant’s motion and to enable the Court to properly determine it ([19] of the Ward affidavit):
Complete his review of the court books comprising approximately 1,900 pages;
Take full instructions from the applicant in relation to his personal claim, his membership of the group, and the circumstances giving rise to any outstanding costs orders;
Obtain instructions from the applicant in relation to the funding arrangements, including the terms of his funding agreement with the second defendant, the Funder’s obligations in respect of costs and security, and the Funder’s indemnity in respect of any adverse costs orders;
Prepare and file further evidence from the applicant addressing the grounds of opposition raised by the plaintiffs and the first defendant, including in relation to:
(a) His understanding of his fiduciary obligations as a plaintiff in representative proceedings; (b) Any outstanding cost order; (c) The adequacy of the security for costs currently held by the Court; (d) The terms of any funding agreement and the protection of group members’ interests; (e) Mr Cappello’s willingness and capacity to act as representative party; and (f) The conditions, if any, that should be imposed on any order for substitution, including as to costs, security, and notice to group members;
Confer with counsel in relation to the evidence and the issues raised in the plaintiffs’ and first defendant’s submissions;
Prepare and file written submissions on behalf of Mr Cappello; and
If necessary, engage with the plaintiffs’ solicitors and the first defendant’s solicitors in relation to any matters that may be resolved by agreement in advance of the hearing of the Motions.
The applicant undertook to pay the costs of the Mitchells and the first defendant thrown away by reason of the adjournment if it was granted.
Each of counsel for the Mitchells and the first defendant made submissions opposing any adjournment.
Counsel for the Mitchells, Mr Cooper, noted that the two days allocated for the hearing were the seventh and eighth days set down by the Court for the same application. The applicant now asked for the ninth and tenth days to be set aside. He submitted the time had come for the applications to be heard. Counsel noted the stress the proceedings were causing to the Mitchells, being without funding, and they having filed a Notice of Motion for discontinuance some time ago.
With respect to the offer of Mr Cappello to pay their costs, counsel referred to Rozenblit v Vainer & Anor (2018) 262 CLR 478; [2018] HCA 23 at [41]-[42] where Keane J said:
[41] It has long been accepted that an order for costs in favour of a party adversely affected by the manner in which litigation is conducted may be a necessary means of preventing injustice resulting from the consequences of incompetence or inefficiency falling short of deliberate harassment or the pursuit of a collateral purpose on the part of an opposing litigant. The decision of this Court in Aon Risk Services Australia Ltd v Australian National University was a reminder that inefficiency or incompetence in the conduct of litigation may unjustly burden the other parties to the litigation, and the administration of justice itself. That decision made it clear, to the extent that clarity was necessary, that orders for costs will not always be sufficient to prevent injustice occasioned by inefficiency or incompetence in the conduct of litigation. The broader point for which Aon Risk is presently relevant is that injustice in the conduct of litigation cannot be justified by invoking the interests of justice.
[42] Litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional cost, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules…
[228] … [The solicitor] chose to accept instructions to act for [the client] knowing that the matter was listed for hearing… and should surely have appreciated the possibility, at least, that an adjournment would not be granted.
[229] I did not (and do not) except that it is reasonable for a litigant to wait until, in effect, the eve of the hearing (especially one listed some 10 months earlier for some six days) in order to retain solicitors and then to expect an adjournment in order to allow the case to be reformulated or supplemented by additional evidence (yet to be unearthed). The retention of the solicitor at the last minute does not guarantee that there will be an adjournment while steps are taken to prepare a case that could have been taken at a much earlier time. An application to vacate on that basis in effect seeks to present the Court with a fait accompli… Neither the Court nor the opposing litigants should be inconvenienced in that way…
Mr Cooper made three points with respect to the submissions made on behalf of the applicant that additional evidence needed to be filed by him. They were:
The applicant’s evidence, and that of the Funder, has already been filed and served. This was done when the applicant was represented by competent solicitors. The withdrawal of those solicitors should not be taken as a licence for the applicant to go back and start from scratch and have another go at filing evidence. The fact that a new solicitor comes in and says, in effect, that the filed evidence is not sufficient, should not be enough to allow the applicant to file additional evidence;
It was not apparent from the material relied upon by the applicant why the matter could not have been prepared in time to be argued on the allocated dates. There is no explanation why the applicant waited two days (from 1 July 2026 to 3 July 2026) following the last adjournment to recontact Mr Ward, and no explanation as to why it took until 7 July 2026 for an additional conversation to take place. Further, it has not been explained why it was only on 10 July 2026 that the court book was provided to Mr Ward. The material relied upon by the applicant is not sufficient to establish that the substitution application is of such complexity that there had not been enough time to prepare. The grounds raised in opposition to substitution, he submitted, were narrow and there should not be a wide-ranging inquisition into every aspect as to how the case is going to be run.
Mr Cooper went through each of the matters in [19] of the Ward affidavit which listed tasks to be done or evidence to be adduced (outlined above at [23]). He submitted it was not necessary for Mr Ward to be familiar with every page of the court books having regard to the narrow nature of the substitution application and the limited amount of material in the court books which related to it. Additionally, the question of Mr Cappello’s membership of the group represented in the proceedings and the terms of the funding agreement are straightforward matters which would take little to no time for him to become aware. It could have been done already in his submission. As to the evidence said to be required as described in [19](d) of the Ward affidavit, Mr Cooper submitted that properly analysed, none of those matters are relevant to the position put forward by the Mitchells or the first defendant on the substitution application. They should not be accepted as a basis for another adjournment.
Mr Cooper submitted that there was an intolerable and overwhelming risk that if the adjournment was granted two weeks for Mr Ward to consider the matters set out his affidavit, he would realise that acting for the applicant funded by the Funder was not tenable. He submitted the risk was that we would come back in two weeks and Mr Ward’s services would either be terminated by the Funder, or he would withdraw. Then we would be facing a further application for an adjournment to seek a new lawyer.
Mr Harding SC for the first defendant adopted the points made by Mr Cooper as having a considerable force. He submitted that it would be open to the Court having regard to the history of the matter, and for the reasons outlined by Mr Cooper, to refuse the adjournment and require the hearing to take place.
Mr Harding submitted there was a middle ground, namely, that the matter be adjourned until the next day so that Mr Ward and Ms Elizabeth could properly prepare the matter for argument at that time. He also submitted that Mr Cappello should not be entitled to a quote “second bite at the evidential cherry”. The matter should proceed on the evidence as filed. He submitted there was a proper and ample opportunity for the applicant to file and serve evidence which he had done.
There was considerable force in the submissions made by Mr Cooper on behalf of the Mitchells and those of Mr Harding SC. In particular, already having had the benefit of a prior adjournment so that evidence could be put on, the applicant had filed and served evidence in support of the substitution application when he was represented by a solicitor.
Additionally, the evidence adduced on the application for adjournment as to what additional evidence would be put forward in support of the substitution application was not strong. Many of the matters which Mr Ward said would be addressed seemed to be bordering on irrelevant. Certainly, they would not take two weeks to deal with.
I accept the strength of the comments of Ward P in the passages referred to above at [29]. Mr Ward must have accepted the retainer from the applicant knowing of the hearing date and of a risk that any application for adjournment would not be acceded to. Nevertheless, the Court had before it a solicitor who had said that he considered additional time was required for him to assess evidential and legal matters to further his client’s application. It was accepted that these matters could be dealt with over a very short period. There was no suggestion that Mr Ward was acting in any way other than in what he perceived to be the applicant’s best interests.
I am also conscious of the legitimate concern of the Mitchells and the first defendant that the offer of the applicant to pay the costs thrown away by reason of the adjournment may be a hollow one. However, the applicant was in Court and confirmed his undertaking to the Court that those costs would be paid. I do not consider this is a case where there has been incompetence or inefficiency on behalf of the applicant (or his new solicitors) such that an order for costs in their favour would not address the prejudice of a very short adjournment. It should be remembered that the previous solicitor for the applicant filed a Notice of Intention to File Notice of Ceasing to Act very shortly before the matter was last due to be heard. Whilst there is some force in Mr Cooper’s analysis of the timeframe in which events then transpired, it seems to me that the applicant acted appropriately in seeking to and then engaging new solicitors.
Whilst I had said on the last occasion that the substitution application would only be adjourned in exceptional circumstances, that was in the context of a concern that Mr Cappello would come back to the Court and say he needed further time to obtain a lawyer. This has not occurred, and despite the matters raised by counsel for the Mitchells and the first defendant which supported the conclusion that the matter should be dealt with on the material already filed without an additional adjournment, I was satisfied that the interests of justice would best be served by granting a very short adjournment with a strict timetable for the provision of any additional evidence and submissions.
I was also conscious that these are representative proceedings and I must have regard to the interests of all group members in respect to the conduct of the proceedings. Each of the motions seeking the substitution of the applicant as plaintiff and the Mitchells’ motions to discontinue are significant matters affecting the interests of all group members. I considered that in the circumstances it was appropriate to grant the adjournment for a very short period.
It was for these reasons that I made the following orders on 13 July 2026:
The 2-day Hearing listed Monday, 13 July 2026 and Tuesday, 14 July 2026 is further adjourned for Hearing on Wednesday, 22 July 2026 at 10am with an estimate of 1 day.
The Applicant is to file any additional evidence and submissions in support of the substitution application by 4pm Wednesday, 15 July 2026.
The Plaintiff and First Defendant are to file any additional evidence and submissions in reply by 4pm Friday, 17 July 2026.
The Applicant, Mr Cappello, is to pay the Plaintiff and the First Defendant’s costs thrown away by reason the adjournment such costs to be assessable and payable forthwith.
On 15 July 2026 at 3.54pm, my chambers received an email from Mr Capello’s solicitors, Brown Ward King (copied to all parties). That email said that they had instructions to withdraw the substitution application by Mr Cappello. No reasons were given as to why.
On 22 July 2026, Mr Ngo, solicitor from Brown Ward King, appeared for Mr Cappello. He confirmed his instructions were that the substitution application would not be pursued. He consented to it being dismissed with an order that Mr Cappello pay the costs of the Mitchells and the first defendant.
Submissions were made by Mr Cooper for the Mitchells, and Mr Harding SC for the first defendant, seeking time to put on submissions as to the form of the costs orders to be made. I accepted those submissions and made the following orders on 22 July 2026:
The Notice of Motion dated 2 March 2026, filed 4 March 2026 by Rosario Cappello is dismissed.
The Plaintiff and First Defendant are to file and serve any evidence and submissions as to costs of the Substitution Motion by 4pm on Friday, 7 August 2026.
The Second Defendant and applicant to the Substitution Motion are to file and serve any evidence and submissions with respect to costs of the application by 4pm on Tuesday, 21 August 2026.
The Plaintiff and First Defendant are to file and serve any evidence in reply by 4pm on Tuesday, 28 August 2026.
Subject to further order, the issues with respect to costs on the Substitution Motion are to be dealt with on the papers.
Parties are granted liberty to apply with respect to Order 5 on 3 days’ notice.
It should be observed that the Funder did not appear (by its director Mr Coshott or represented by a legal practitioner) on either 13 July 2026 or 22 July 2026. This was in the context of Mr Coshott, the director of the Funder, having appeared on 1 July 2026 when the substitution application was adjourned to 13 July 2026. Indeed, Mr Coshott supported the adjournment (Tcpt, 1 July 2026, p 7(8)-(13)). Directions were then made for the Funder (as one of the defendants) to file additional submissions on the question of standing in the substitution application. No suggestion was made by Mr Coshott that the date of 13 July 2026 was unsuitable.
On 10 July 2026, my chambers received an email from Mr Coshott (MFI 1). It enclosed some supplementary submissions of the Funder. The email stated:
I am leaving tomorrow for overseas. I will not be able to appear on Monday. I have nothing further to put on the motions.
On 13 July 2026, the matter was called 3 times outside the Court. There was no appearance by the Funder.
The Funder was aware of the matter being adjourned to 22 July 2026, at least by 15 July 2026. The Funder was copied into the email from Brown Ward King of that date advising that their client would not be proceeding with the substitution application on 22 July 2026.
On 22 July 2026, the matter was called 3 times outside the Court and there was no appearance for the Funder.
I delivered ex tempore reasons on that day as to why I was prepared to proceed to hear the balance of the Mitchells’ discontinuance motion in the absence of the Funder.
**********
See Mitchell v Transport for NSW [2022] NSWCA 141, Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 2) [2024] NSWSC 1165; Mitchell v Roads and Maritime Services (now known as Transport for NSW) (No 3) [2024] NSWSC 1593. Judgments in the associated proceedings in this Court and in the Court of Appeal between the Mitchells and the Funder are: Litigation Fund WCX Pty Ltd v Darren Mitchell [2025] NSWCA 27; Litigation Fund WCX Pty Ltd v Mitchell (No 2) [2025] NSWCA 33; Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67, Litigation Fund WCX Pty Ltd v Mitchell (No 4) [2025] NSWCA 106; Litigation Fund WCX Pty Ltd v Mitchell (No 5) [2025] NSWCA 149, and Litigation Fund WCX Pty Ltd v Mitchell (No 6) [2026] NSWSC 341.
Dated 12 September 2025.
Mitchell
Roads and Maritime Services (now known as Transport for New South Wales) (No 4)