On 17 March 2022 I gave judgment in respect of a number of motions brought by the first, second, fourth, fifth, sixth, seventh, eleventh, twelfth, thirteenth and fifteenth defendants, and on a notice of motion filed by the plaintiff. I dismissed the plaintiff's notice of motion. I made orders either for the removal of defendants from the proceedings, or dismissing the proceedings on the basis that no reasonable cause of action had been disclosed: Qasim v Bird [2022] NSWSC 258.
As I noted in that judgment at [67], the fourth, eleventh, twelfth, thirteenth and fifteenth defendants (represented by the same solicitors and counsel, and hereinafter referred to as "the tribunal defendants") sought a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The remaining defendants in respect of those motions indicated that they would like to give consideration to making application for a lump sum costs order. Accordingly, I reserved the question of costs of all of the notices of motion.
In addition to the application for a lump sum costs order by the tribunal defendants, similar applications have now been made by the first, second and seventh defendants. The fifth and sixth defendants seek costs on the usual basis only.
The plaintiff was given an opportunity to respond to those applications and to indicate whether she was agreeable to the applications being dealt with on the papers or whether she wanted a further hearing in relation to those applications.
The proceedings were adjourned to Friday 18 March, 2022, partly for the purpose of ascertaining the plaintiff's attitude as to whether the costs issues should be determined on the papers or following a further hearing. The plaintiff failed to appear on that occasion. No explanation has been offered for that failure.
On 22 March 2022 my Associate, at my direction, sent an email to the plaintiff saying:
His Honour intends to determine the applications for lump sum costs orders on the papers without a further oral hearing, but will consider any application by you for a further hearing.
The email also directed any affidavits of the plaintiff to be filed and served by 28 March 2022.
In response, the plaintiff forwarded an email to my associate on 22 March which said (inter alia):
I will not agree to any payment or a lump sum payment of any sort on papers without a hearing timetable that I understood was to occur but preferably a different forum of a higher court.
I am unable to provide any AFFIDAVITS BY THE 28 March other than the fact I will not allow it to proceed without a proper trial and or intensive cost assessments.
(Emphasis in original)
My Associate responded on 22 March saying (inter alia):
The issue of costs will not be dealt with by a trial. It will be dealt with either by a short oral hearing where submissions will be made, or on the papers by his Honour after written submissions are provided. Please inform me which way you seek that the matter proceed. His Honour will them make a determination how the matter will proceed.
Given that you are not able to serve any affidavits by 28 March, his Honour is prepared to extend the time for your affidavits and any submissions to 4.00pm on 31 March 2022.
On 24 March, the plaintiff lodged a written submission which, while saying that the costs should be dealt with by cost assessments, said nothing about how the costs applications for gross sum costs orders should be dealt with. I determined, therefore, to decide the matter on the papers.
As noted, the plaintiff submitted that the issue of costs should be dealt with through costs assessments. The only submission made in support of that application was that a person described as "the late JA Gibson" always intended that costs should be determined through costs assessments rather than by oral submission. The plaintiff sought that his wish be upheld. The remainder of the written submission reiterated complaints about what had occurred in the proceedings before NCAT and her complaints regarding the third defendant. The third defendant has a separate notice of motion to dismiss the proceedings against him listed for hearing on 29 April 2022.
In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213, Giles JA said of the earlier equivalent provision to s 98(4) (Part 52A, r 6(2) Supreme Court Rules 1970 (NSW)):
[21] The power conferred by r 6(2) is not confined, and may be exercised whenever the circumstances warrant its exercise. It may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment (Leary v Leary (1987) 1 WLR 72; Sparnon v Apand Pty Ltd (von Doussa J, 4 March 1998, unreported); Beach Petroleum NL v Johnson (1995) 57 FCR 119; Hadid v Lenfest Communications Inc [2000] FCA 628).
[22] Of its nature, specification of a gross sum is not the result of a process of taxation or assessment of costs. As was said in Beach Petroleum NL v Johnson at 124, the gross sum "can only be fixed broadly having regard to the information before the Court"; in Hadid v Lenfest Communications Inc at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that … is what the rule contemplates". The approach taken to estimate costs must be logical, fair and reasonable (Beach Petroleum NL v Johnson at 123; Hadid v Lenfest Communications Inc at [27]). The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA).
In Hamod v State of New South Wales [2011] NSWCA 375, Beazley JA (with whom Giles and Whealy JJA agreed) said:
[813] I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:
"The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available."
[814] See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date, " Civil Procedure Act ", at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd ; Lorenzato v Lorenzato & Anor (No 2) [ 2011] NSWSC 790 per Black J.
…
[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.
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[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.
In Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863, Beech-Jones J said:
[6] Thus, in addition to complex cases, another common category in which lump costs will be awarded is the very short and relatively straightforward case. In such cases it can be expected that costs will be modest so that the pursuit of the costs assessment process might lead to unnecessary expense. This is particularly so where there is doubt about the payer's financial capacity. Further, in such cases the court will often be in a good position to make a reasonably well-informed assessment as to how much of the costs were reasonably incurred, because in a straightforward case it may often be apparent what out of court work was necessary for the case as presented.
[7] Against the above is, of course, the broad proposition that the detailed scheme for costs assessment which affords protections to the parties should not be undermined by too quick a resort to the power conferred by s 98. Counsel for Mr Bobb, Mr Raphael, urges that consideration upon me. He also submits the amount claimed in this case is such that it cannot be characterised as a small matter.
[8] I disagree. I consider that the circumstances of this case clearly warrant the making of a lump sum costs order. In the scheme of cases in this Court, the costs claimed are relatively modest. There are significant doubts about the plaintiff's capacity to pay such that there is a real risk that the costs of any assessment process undertaken by the first defendant may be thrown away. The issues in the case were straightforward and the Court is in a position to make a reasonably well-informed assessment as to the appropriate level of costs. Further, it must be borne in mind that the substantive issue of the proceedings was a dispute over the costs assessment process. A further order requiring the re-engagement of that process has the risk that the substantive dispute between the parties will become wider rather than narrower.
In my opinion, a gross sum costs order should be made in respect of each of the defendants seeking such an order. The matter, in respect of which each costs order is now sought, concerned a straightforward notice of motion by each defendant or group of defendants. Given that the plaintiff has not been entitled to practise her profession for more than 11 years, there must be some doubt about whether the plaintiff will be able to meet any costs order.
Further, the fact that the plaintiff acts for herself and is fixated on certain aspects of what she perceives to be wrongful treatment of her, and her seeming inability to accept unarguable legal propositions and principles, any costs assessments are likely to be lengthy, expensive, and out of proportion to the amount of the costs being assessed in each case. That conclusion is supported by the statement in her email that she wants "intensive costs assessments".
It is also not without relevance that four separate groups of defendants are seeking gross sum costs orders: Miles v Doyle (No 3) [2021] NSWSC 1524 at [20(4)]; Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009 at [50].
[2]
First defendant
The first defendant seeks a gross sum costs order of $25,000.00. Evidence provided by the solicitor for the first defendant shows that his firm has incurred fees of $20,539.10 plus GST. Counsel's fees total $8,118.75 plus GST.
[3]
Second defendant
The second defendant's fees have not yet been billed, but, if billed on the hours worked to date, would total $11,915.50. However, the second defendant's lawyers seek only $4,800.00 for their fees together with disbursements being $427.00 for a filing fee and $12,480.00 for counsel's fees. The total figure sought is, therefore, $17,707.00.
[4]
The Tribunal defendants
These defendants had sought a gross sum costs order in their notice of motion. Evidence was provided concerning costs and a claim was made for a lump sum costs order in the amount of $4,500.00. Subsequent to my earlier judgment and the directions I gave for the filing of evidence and submissions in relation to costs, the solicitor for the tribunal defendants indicated that the costs incurred now totalled $8,496.60 but, nevertheless, the claim was confined to the amount first sought of $4,500.00.
[5]
Seventh defendant
Evidence on behalf of the seventh defendant indicated solicitors' costs of $7,598.25 with counsel's fees of $7,687.00. These amounts totalled $15,285.25.
While the costs for the first, second and seventh defendants might, at first blush, seem high, given the nature and scope of the notices of motion, it is clear that the approach of the plaintiff to the hearing of the motions has increased the costs that would otherwise have been incurred. The plaintiff prepared a court book of six volumes containing vast amounts of repetitive and irrelevant material. Quite apart from the need for the lawyers acting for the defendants to read this material, they needed to prepare their own joint court book so that their own material would be before the Court.
When assessing the costs for the purpose of making a gross sum order a broad brush approach may be taken: Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99 at [31] and [38]; Hamod v New South Wales (No 13) [2009] NSWSC 756 at [31]; see also Hamod at [819]-[820] and Young v Hones (No. 3) at [28]-[30].
I do not think I should ignore the fact that what each of the groups of defendants was seeking to achieve involved a similar process with broadly similar principles and submissions. It is reasonable, therefore, to compare the amounts each has incurred and is seeking. I consider that the position of the tribunal defendants should be put to one side, because they are represented by the Crown Solicitor who must act as a model litigant. In any event, the simple proposition put forward on behalf of the tribunal defendants, that they had judicial immunity, was virtually incontestable.
I consider, however, that to be fair to the plaintiff who is being deprived of the usual process of a costs assessment, there should be parity amongst the remaining defendants. As the authorities make clear, a reasonably arbitrary discount is to applied when a gross sum costs order is made. For those reasons, each of the first, second and seventh defendants should have a gross sum costs order in the sum of $12,000 plus GST, which amount includes the present application.
I make the following orders:
I order the plaintiff to pay costs of the first defendant in the sum of $12,000.00 plus GST.
I order the plaintiff to pay costs of the second defendant in the sum of $12,000.00 plus GST.
I order the plaintiff to pay costs of the fourth, eleventh, twelfth, thirteenth and fifteenth defendants in the sum of $4,500.00 plus GST.
I order the plaintiff to pay costs of the seventh defendant in the sum of $12,000.00 plus GST.
I order the plaintiff to pay the costs of the fifth and sixth defendants.
[6]
Amendments
20 April 2022 - The previously published judgment of Qasim v Bird (No 3) [2022] NSWSC 418 contained an error in order 3. That error has now been corrected under UCPR r 36.17, and the judgment has been republished.
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Decision last updated: 20 April 2022