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File Number(s): 2026/29699

Publication restriction: No

JUDGMENT

1. On 18 June 2026 I dismissed proceedings brought against each of the defendants (Wang v State of New South Wales [2026] NSWSC 708). I did so because the proceedings were vexatious and an abuse of process under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

2. I ordered that the plaintiff was to pay each of the defendants’ costs. Since my decision on 18 June 2026, both defendants have made an application for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

3. A timetable was set for the filing of submissions. The plaintiff did not respond to the defendants’ submissions within the timetable. The timetable was extended for the plaintiff to file her submissions after it was discovered by the first defendant that there had been an error in the address at which the plaintiff had been served. The fresh service at the correct address also did not give rise to any submissions by the plaintiff.

4. In A.C.N. 627 087 030 Pty Ltd v Poche (No 2) [2026] NSWCA 29, from [10], Ward P identified the relevant principles:

“The relevant principles to an application for a gross sum costs order are well-known and need only be briefly stated.

In Hamod v New South Wales [2011] NSWCA 375, Beazley JA (as Her Excellency then was), with whom Giles and Whealy JJA agreed, identified (at [816]) the relevant considerations in exercising the wide discretion conferred by s 98(4)(c) of the Civil Procedure Act as follows:

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].

Her Honour went on at [817]-[818] to observe that:

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] FCA 228; (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628.

The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings*: Leary v Leary* [1987] 1 WLR 72; [1987] 1 All ER 261*; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang* (2003) 58 IPR 445; [2003] FCA 101; Ritchie's Uniform Civil Procedure NSW at [s 98.60]).

Her Honour also pointed out that the quantum of gross sum costs order must be the consequence of ‘an informed assessment’ ([820]). In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Schipp), to which her Honour referred in the passages extracted above, Giles JA said (at [22]) that 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’.

Hence, in Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 (Ahern) ([14]-[17]), this Court identified the two issues to be considered in a gross sum costs application as whether there are proper grounds to do so; and whether the Court is in a position to do so, fairly and with some confidence as to the appropriate sum to be awarded.”

5. Because the proceedings were summarily dismissed, they were not lengthy. However, their summary dismissal indicates that they were entirely without merit.

6. As can be seen from the facts set out in my above judgment, the plaintiff’s proceedings were yet another attempt to pursue a claim which had already been found to be untenable. I said at [3]:

“This is not the first time proceedings arising from the same facts have been brought. In fact, this is the tenth time and is the 14th iteration of a statement of claim against the first defendant, and the third proceeding against the second defendant. The matter has been to the Court of Appeal (more than once) and to the High Court where leave to appeal was refused.”

7. In my view this factor justifies the making of a gross sum costs order in order to avoid the necessity for the defendants to go through an assessment process in which the plaintiff, based on her lack of participation in the present applications, probably would not take any part.

8. Each defendant has provided me with a suggested costs assessment including a discount.

9. The first defendant’s claim is set out in the affidavit of Mr Christopher Gates dated 31 July 2026. Mr Gates is a solicitor in the office of the Crown Solicitor for New South Wales. Mr Gates has reviewed the various invoices and calculated costs at about $25,000 on a solicitor client basis and disbursements of $14,094.69. The costs have been reduced by 30% down to $17,500 and the disbursements down to $9850. The total claim made by the first defendant is therefore $27,350.

10. There is nothing about the figures put forward to cause me any concern. They are included in the tax invoices annexed to Mr Gates’s affidavit.

11. The second defendant’s claim is based on an affidavit of Ms Emma Gill dated 31 July 2026. Ms Gill is a solicitor working for the Australian Government Solicitor. I have no reason to doubt any of the figures put forward by Ms Gill and I think the discount of 25% is appropriate.

12. The second defendant has asked for the sum of $21,146. This is made up of AGS fees actually incurred of $21,103 but reduced by 25%. The balance is attributable to disbursements ($2335.75) and counsel’s fees ($3050).

13. The absence of any comment from the plaintiff may not be indicative of her acceptance of the reasonableness of the figures but does confirm that she does not wish to challenge them.

14. I make the following orders:

15. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first defendant's costs of the proceedings in the specified gross sum amount of $27,350.00.

16. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the second defendant's costs of the proceedings in the specified gross sum amount of $21,146.00.

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