Young v RSPCA NSW

District Court of NSW|2019-10-24

The application before the court

This is an application for a gross sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW), following the discontinuance of proceedings for defamation by the plaintiff against the sixth and seventh defendants in these proceedings.
The plaintiff filed a statement of claim in which he incorrectly sued the seventh defendant as the publisher of a website www.news.com.au. The publisher of the website at www.news.com.au is News Life Media Pty Ltd. The terms and condition of the website which are available at https://www.news.com.au/more-information/terms-and-conditions include a table stating the names and publishers of News websites, the relevant jurisdiction governing each site, and a street address for the editor. The second site listed in the table is "news.com.au" and the publisher is stated to be "News Life Media Pty Ltd".
A copy of the matter complained of, as attached to the statement of claim, is set out as a schedule to this judgment. Its relevance is that one of the applications made by the plaintiff, namely for any costs order in these proceedings to be deferred until the conclusion of other proceedings he intends to bring against the sixth defendant and News Limited or a related entity in the Federal Court of Australia for causes of action which include a fresh defamation action in relation to this publication.
The plaintiff was informed of the error in relation to the name of the seventh defendant on 25 July 2019. A bundle of correspondence between the parties has been tendered and forms part of the affidavit of Marlia Ruth Saunders sworn on 26 August 2019. Following this, a notice of discontinuance was filed by consent on 16 August 2019.
On 22 August 2019 the matter was listed for directions before Levy SC DCJ, as was another action commenced by the plaintiff (Gary Young v Racing NSW (2019/224988)). Levy SC DCJ referred the plaintiff to the New South Wales Bar Association's Pro Bono Scheme in relation to both the proceedings against Racing NSW and in these proceedings in relation to the foreshadowed application by the sixth and seventh defendants as to costs. The orders made by Levy SC DCJ on 22 August 2019 were as follows: 1. Plaintiff granted leave to file an amended statement of claim by 30 September 2019; 2. The defendants are to communicate any objections to amended statement of claim by 14 October 2019; 3. Plaintiff is to communicate to the defendants whether he accepts defences by 3 October 2019 4. Proceedings are stood over to 24 October 2019 for further directions. 5. Defendants 6 and 7 are to serve the plaintiff with their evidence as to costs by 26 August 2019, to be ventilated before list judge to fix time for argument; 6. Costs of today's proceedings are reserved; 7. Pursuant to UCPR r 7.35 the Registrar is directed to refer the plaintiff and the proceedings to the Pro Bono Manager of the NSWBA to obtain assistance for the plaintiff to redraft his pleading.

The sum sought

The sixth and seventh defendants seek costs on a party/party basis on and from the date of the notice of discontinuance up until and including the date of hearing for this application in the sum of $5,905.90 (GST included).

The relevant statutory provisions

Section 98 Civil Procedure Act 2005 (NSW) provides: "Courts powers as to costs 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount. (5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996 . (6) In this section, "costs" include: (a) the costs of the administration of any estate or trust, and (b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and (c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed."
Proportionality is also a relevant issue: s 60 Civil Procedure Act 2005 (NSW).

Gross sum costs orders

The longstanding process of assessment by a costs assessor resulted in a degree of reluctance by courts to order gross sum costs orders as any kind of general rule. Two exceptions to the rule have been cases where litigation is protracted or complex (Idoport Pty Ltd v National Australia Bank [2005] NSWSC 1273) or where the party obliged to pay the costs would not be able to meet the assessment (Harrison v Schipp (2002) 54 NSWLR 738 at [21]-[22]; Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 at [9]).
However, assessment remained the preferred course and gross sum costs orders were not commonly made until the last decade, over which time, as Brereton J noted in In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 at [29], "the initial reluctance of courts to make such orders has increasingly dissipated" (see also Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009 at [43]-[57]). This change has occurred not only in large cases where assessment of costs would be protractive and expensive, but also in proceedings there is a desirability of avoiding "satellite litigation" about costs, as Brereton J went on to note (at [29]).
The present case is a good example of "satellite litigation". The desirability of such matters being determined by the judge who is already familiar with the proceedings is explained by Brereton J at [30]: "30. In my view the potential quantum of the costs liability, the complexity of the proceedings, and the likely costs and delay that would be involved in the assessment process, make this prima facie a paradigm case for a gross sum order. The defendants' opposition to a gross sum order was founded on the contention that such an application would prolong the already protracted litigation between the parties. In my view, it will do so no more, and potentially less, than proceedings for costs assessment. It will have the advantage that the exercise is conducted by, or under the supervision of, a judge already familiar with the proceedings. It will minimise the potential for further satellite litigation, reviews and appeals in costs assessment proceedings. And the Court could still, if it considers it appropriate, refer the question to an assessor or referee for inquiry and report."
There is, however, an additional requirement, and that is that the court should have "sufficient confidence" (Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Argus [2007] NSWSC 23 at [9]) in arriving at an appropriate sum on the materials available, which requires a detailed and careful analysis not only of the relevant costs but also of the appropriate method of assessment with reference to all appropriate guidelines, such as the "Guideline For Costs Payable Between Parties Under Court Orders" issued by the Supreme Court of New South Wales on 16 March 2019 (a copy of which is available at this internet address: http://www.supremecourt.justice.nsw.gov.au/Documents/Forms%20and%20Fees/Costs%20Assessment%20Forms/Guidelines_costs_payable.doc)
Is it necessary for there to be an affidavit from a costs assessor? This is not the case as a general rule, for the reasons explained by Fagan J in Dickens v State of New South Wales & Ors (No 2) [2018] NSWSC 14 at [11]-[12]: "11. In his written submissions of 24 November 2017 the plaintiff contends that I ought not to exercise my discretion under s 98(4)(c) and instead allow the matter to proceed to assessment in the usual manner. In support of this it was submitted that "there is no affidavit from an independent costs assessor to support the motions, the affidavits, the submissions and the amounts sought" and that "each individual item needs to be properly assessed by an independent expert assessor on costs". The plaintiff attempted to develop this argument in his submissions of 8 December 2017. He asserted that Lehane J's judgment in Hadid v Lenfest Communications Inc [2000] FCA 628 is authority for the proposition that the absence of an affidavit or other evidence from a legal costs consultant verifying the reasonableness of the costs claimed by the defendants precludes or at the least tends against the making of a gross sum order. 12. That submission proceeds on a misapprehension of the purpose of a gross sum costs assessment conducted by the Court. The power to make an order under s 98(4)(c) presupposes that the Court may proceed without the assistance of independent costs assessors in an appropriate case. The costs assessor's evidence in Hadid v Lenfest Communications Inc was directed merely towards the time and expense likely to be incurred in an assessment: at [22]. The evidence was not, as the plaintiff appears to have understood, given in support of the amount of costs claimed."
The plaintiff in the present case makes similar submissions to those made to Fagan J, arguing for a "level playing field" and for costs to be assessed by a costs assessor. Fagan did not accept that submission and additionally made the following further observations (at [15]): "15. … The Court's experience of the plaintiff's conduct of this litigation is sufficient to satisfy me that he is likely to remain unrepresented throughout any costs assessment process…"
This led Fagan J to take the view that the costs assessment process could be protracted and costly as a result.
That is the case here. Given the modest amount of costs claimed, even if the plaintiff was successful in reducing the amount by up to one-quarter, the costs of doing so would far outweigh the exercise which would be contrary to the concepts of proportionality set out in s 60 Civil Procedure Act 2005 (NSW). The assessment process would be protracted in that the self-represented plaintiff does not have the familiarity with costs law issues, as well as for the reasons adverted to by Fagan J.
Taking all of the above into account, I am satisfied that this is an appropriate matter for the making of a gross sum costs order. I am also satisfied that the affidavit of Ms Saunders contains information to the appropriate standard that I can have "sufficient confidence" (Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Argus at [9]) for the making of such an order.

Ms Saunders' affidavit

Ms Saunders sets out the following relevant information: 1. Her experience as a solicitor and hourly rates as guided by the "Guideline For Costs Payable Between Parties Under Court Orders", as well as the charge out rates for herself, the solicitor who assists her and Ms Cowden of counsel. 2. The tasks in question which led to the sixth and seventh defendants having incurred approximately $6,008.20 (GST included) of professional fees and counsel's fees on a party/party basis, including the identification of the tasks involved. 3. Estimates for work performed up until 16 August 2019 of $4,205.74 (being 70% of those costs). 4. Work from 16 August 2019 to date, resulting in a total of $8,437.00, reduced to the sum claimed of $5,095.90 (GST included), being 70% of the costs.
I am satisfied that the costs have been assessed on a party/party basis and that an appropriate deduction has been made to allow for items that could be disallowed by the costs assessor. I note this was a particular concern of the plaintiff, who considered that a costs assessor would reduce the bill. If the defendant reduces the bill by 30%, that should be sufficient to allay his concerns that he could do better on assessment, as 30% is near the top of the range of discounts generally given for gross sum costs orders.

The plaintiff's submissions as to costs and request for costs to be payable at the end of the litigation

Although the plaintiff set out at some length the reason why he should not be ordered to pay costs at all, he effectively conceded, in the course of his appearance via telephone, that costs should follow the event and acknowledged that costs orders have in fact already been made.
In addition to his request for such costs to be assessed, however, he submitted that these costs should only be payable at the end of the litigation. This would include, not only the conclusion of the proceedings in the Federal Court, but also the conclusion of any appeals.
Given the degree of overlap between the proceedings in the District Court and the proceedings in the Federal Court, which will include a claim for defamation based on the same publication, this is initially an attractive proposition. However, the case which the plaintiff proposes to bring in the Federal Court (which I have seen in draft, in the form of a proposed statement of claim) is of a very different nature, in that it brings a raft of claims for damages for intimidation, harassment, extortion, blackmail and defamation in relation to issues not only involving the circumstances in which the RSPCA initially brought the proceedings in 2011, but to a course of conduct over a period of some years. The portion of the claim relation to the subject matter in these proceedings is substantially enlarged and has become part of a claim for millions of dollars.
In circumstances where the cause of action has been so substantially repleaded, and fresh proceedings commenced in another court, it is appropriate that the costs issues in relation to the proceedings in this court be finalised. Accordingly, I refuse the plaintiff's application for the costs not to be payable in accordance with the general rule for costs on discontinuance.

Section 23 Defamation Act 2005 (NSW)

It is unclear to me whether the plaintiff proposes only to sue the correct publisher "News Life Media Pty Ltd", the corporation sued in these proceedings, or both, in the proceedings in the Federal Court. It is clear, however, that he does intend to bring proceedings against the sixth defendant, Mr Gavin Fernando, in the Federal Court for publication of this material. In those circumstances, I directed the plaintiff's attention to the need to seek leave under s 23 Defamation Act 2005 (NSW).
I have received further submissions from him acknowledging that, if fresh proceedings are commenced against the same respondent(s) in the Federal Court, he will accordingly seek leave. Whether or not that leave is granted will be a matter for the Federal Court. To assist in the determination of that issue, the matter complained of in these proceedings is set out as an annexure to this judgment.

Orders 1. The plaintiff pay the sixth and seventh defendants' costs in the gross sum of $5,905.90, pursuant to s 98 Civil Procedure Act 2005 (NSW). 2. The plaintiff's application for payment of the costs to be deferred pending the completion of proposed litigation in the Federal Court of Australia is refused.

Schedule - Text of the matter complained of "GARY YOUNG, NSW SENATE Former horse breeder Gary Young, of Gundary near Goulburn, was found guilty in 2012 of aggravated animal cruelty after RSPCA inspectors found a neglected and emaciated horse heavily infected with lice. The RSPCA said the mare had to be euthanised when its condition worsened, the ABC reported. Mr Young confirmed to news.com.au via email that the RSPCA took him to court, but he denied responsibility, claiming he did not own the horse and it was "not at any time" present on his property. He also said the case was dismissed. He claimed the RSPCA pursued him "as a vendetta" and "an act of … revenge" after he sued NSW branch president Peter Wright the year before on animal cruelty allegations. Mr Young's case against Mr Wright was thrown out by a Sydney magistrate. Here is Mr Young's response to the incident. [Picture with caption]: "the horse….. ….. the allegation Gary Young was found guilty of aggravated animal cruelty in 2012after RSPCA inspectors found an emaciated horse at his property NOT AT ANY TIME WAS THIS HORSE ON MY PROERTY [sic]… I do not and did not own this horse.. AND THE RSPCA INSPECTORS DID..... NOT…. COME to MY PROPERTY to…. INSPECT THIS HORSE>>> in 2010. He was ordered to pay almost $118,000 in legal Fees… the NSW DISTRICT COURT On Appeal.. threw out the conviction allowed the appeal and dismissed the case.. RSPCA witnesses have been….. found… as a finding of fact…. To have misled the court under oath… ie perjury .. We are also referencing his nsuccessful [sic] attempt to sue Facebook for $1 million in 2015 after hewas banned from a patriot group for three days."] [Caption: In an email to news.com.au, Mr Young denied that the horse in question belonged to him or was found on his property. Source: News Corp Australia] News.com.au understands the charges against Mr Young were dropped in 2016 under section 32 of the Mental Health (Forensic Provisions) Act 1990 conditional upon him entering into a mental health treatment plan. Mr Young launched a failed bid to sue Facebook for more than $1 million in 2015, claiming the social media network was "malicious" after it banned him for three days from the "patriot" group he administered, The Sydney Morning Herald reported. The anti-Islam activist was one of two administrators of Common Cause, a far-right group that advocated for banning halal food and foreign property ownership. The Federal Court dismissed the case as it had "no reasonable prospect of success", and ordered costs against Mr Young. Mr Young claimed the only reason Facebook won was because he sued Facebook Australia instead of Facebook Ireland. In an email to news.com.au, he said: "I did sue Facebook. They won because I sued FB Australia instead of FB Eireland (sic). however our differencers (sic) were resolved as well at that time (sic) … and they backed of (sic) with their intimidation of me and I was reinstaed (sic) with whatever righst (sic) I had prior … I still have the right to refile that lawsuit … naming FB Eireland." Mr Young's group is still active on Facebook, and regularly posts memes against the major parties, the Greens, Pauline Hanson, Muslims and climate change. He runs two accounts on Facebook - a personal one with an assumed name of "Gee Young", and a semi-anonymous official account tied to his candidate email address, which features no identifying photos of himself."

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2019

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