Griffiths v State of New South Wales (No 3)

1. [1]

   In Griffiths v State of New South Wales (No 2) [2015] NSWSC 1932, I ordered that Mr Griffiths’ amended statement of claim be dismissed. The State sought an order under s 98(4) of the Civil Procedure Act 2005 (NSW) that Mr Griffiths pay its costs of the proceedings as a lump sum of $180,000, or such other order as it thought appropriate. Its motion was supported by affidavits sworn by Ms Whittle its solicitor.

2. [2]

   Ms Whittle explained in her affidavits which annexed the tax invoices for the conduct of these proceedings, the basis of the costs order sought in relation to the costs incurred by the State since 12 January 2009, in dealing with the repeated attempts Mr Griffiths had made to amend his pleadings, including:

3. [3]

   An offer of compromise was made on 15 April 2010, by which it was proposed that judgment be entered in the State’s favour, on the basis that each party bear its own costs. A further offer for judgment in Mr Griffiths’ favour for $150,000, together with costs as agreed or assessed was made in October 2013. A Calderbank offer in similar terms was made in June 2015.

4. [4]

   The evidence is that the State has incurred costs of some $223,841.20 excluding GST, as well as counsel’s fees of $87,950 and other disbursements of $3,870.63. The total amounts to some $315,661.83 excusive of GST, which is not claimed. The rates charged for attendances by various solicitors were explained. Ms Whittle explained that while on assessment, she expected that these costs would be allowed, on a party/party assessment they may be reduced by 20-25% of the total costs claimed. In the result she considered that fair and reasonable solicitor’s costs would be in the order of $167,880.90; that counsel’s fees would be allowed in full, given rates charged at $250 per hour, plus GST, which was in her experience below commercial value. In the result a sum of $259,701.53, including disbursements would be a fair and reasonable assessment.

5. [5]

   Despite this evidence, to bring the proceedings to a close, the State sought an order of $180,000 on a lump sum basis, for all its costs and disbursements.

6. [6]

   Mr Griffiths opposed a costs order being made in favour of the State, submitting that it should be responsible for its own costs. He also indicated that he proposed to counterclaim the costs order.

7. [7]

   By his motion of 2 March 2016, Mr Griffiths sought an order under s 98(4) requiring the State to pay his costs in the sum of $210,000 or such other sum as it thought fit. He also sought an order that:

8. [8]

   That motion was supported by an affidavit sworn by Mr Griffiths, in which he deposed that in 2001 he had pursued an appeal in the District Court, to have his depression and anxiety accepted as “Hurt on Duty”. The appeal had been settled, but “the action per se was continued on with to establish the full extent of that work disability”. In 2008, he had instructed lawyers following the acceptance of his work injury/disability being permanent. In 2010, he had commenced acting on his own behalf.

9. [9]

   Mr Griffiths explained that he considered the statement of claim and amended statements filed by his former solicitors to have been flawed and contrary to instructions. Later he had sought to amend his pleadings on some seven other occasions, but the defendant’s failure to provide “the factual evidence relative to those prior given directions and unsupported actions” had prevented him from completing his amendments.

10. [10]

    Mr Griffiths then detailed events which had occurred while he was a police officer, dating back to 1999, about which he claimed the State had made relevant admissions in September 2010 and in 2012. He also explained how, in 2010, he had first come into possession of identified reports. He also sought to explain his claims in relation to the supply of a false response to a complaint given in 2003 and what information he had received in 2007, under a Freedom of Information application had revealed.

11. [11]

    Mr Griffiths also referred to an October 2010 conditional offer which he had made to settle these proceedings, to which there had been no response. That offer had been repeated, he said, on ten further occasions to February 2016, together with requests for the provision of specified information, which had not been responded to.

12. [12]

    Mr Griffiths also advanced submissions as to documents relied on by the State to advance the case in which it had succeeded and resulted in the December 2015 judgment. He also itemised his claim for costs, including medical expenses, hourly charges for the time he had spent, legal fees and various disbursements. He also sought an order of $500,000 for exemplary damages.

13. [13]

    In his written submissions of 30 March, Mr Griffiths expanded on the matters addressed in his affidavit, submitting that the State ought not to be pursuing him for costs, given his psychiatric conditions; its various admissions; his offers; the circumstances in which the hearing of the dispute as to costs had been arranged; his refusal of the State’s offers, which did not provide, he said, for restoration of his credibility and other matters unnecessary here to further outline.

14. [14]

    As to his claim for exemplary damages, Mr Griffiths complained that the only reason he had been unable to complete a fair, just and concise statement of claim had been the defendant’s ongoing denial of access to relevant material. He also complained of other wrongs done to him and the State’s failure to deal with them, as well as the circumstances in which he came to be hurt on duty while a police officer.

15. [15]

    The submissions as to these matters extended in detail over some 16 pages, as to matters dating back to 1986, matters on which Mr Griffiths plainly would have sought to rely, had the orders made in the December 2015 judgment not been made and the matter gone to trial.

16. [16]

    He also relied on the defendant's filed Court Book and associated documentation, to advance various of his submissions. He also made complaint as to various events during the course of the proceedings, pursued, he submitted, in order to ensure that his case was not heard.

17. [17]

    A variety of other complaints and allegations were advanced, for example, as to an alleged assault by a former police officer in March 2007, which had not resulted in any charges being laid by Police. He also relied on what had occurred in the District Court proceedings, earlier referred to.

18. [18]

    Mr Griffiths also submitted that he had been denied procedural fairness and that “in order to [b]ring my matters to a final fair and just conclusion and further to prevent and or deter similar actions as afford me, being afforded others in the future, I seek that exemplary damages be awarded”.

Costs

1. [19]

   The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that they follow the event, including where proceedings are dismissed (see Rules 42.1 and 42.20). Costs orders are compensatory. The usual order, in this case, as I said in the December 2015 judgment, is an order in favour of the State against Mr Griffiths, for costs as agreed or assessed. The Court has undoubted power, however, to depart from the usual order, including by exercise of the s 98(4) power, to make an order for a specified gross sum, instead of assessed costs.

2. [20]

   In this case, despite Mr Griffiths’ extensive submissions, he has not established any basis upon which an order for costs could be made in his favour, given what was decided in the December 2015 judgment. Further, even if such an order could be made, as a litigant in person, he could only recover reasonably incurred disbursements and witness expenses, not compensation for the time that he has spent in his pursuit of the proceedings (see Preston v Commissioner for Fair Trading [2011] NSWCA 40; (2011) 80 NSWLR 359).

3. [21]

   Despite his very many submissions, there is no evidence of relevant misconduct in the proceedings on the State’s part, of the kind discussed in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. Mr Griffiths’ vehemently held views to the contrary, as explained, do not establish such misconduct.

4. [22]

   Further, Mr Griffiths has clearly received and failed to accept offers of settlement, which were substantially more to his benefit than the orders finally made. That is, but another reason for declining to make a costs order in his favour.

5. [23]

   The exercise of the s 98(4)(c) power was considered in Hamod v State of New South Wales and Anor [2011] NSWCA 375, where it was observed at [816] – [820]:

6. [24]

   Here, I consider that these considerations must drive to the conclusion that justice demands that the discretion to make a gross costs order should be exercised.

7. [25]

   The evidence I have discussed well establishes all that has been incurred in order to meet the case Mr Griffiths has sought laboriously, but unsuccessfully to express in his pleadings. Given that despite all of the effort expended, he has even yet not produced a pleading on which his case can be permitted to advance, justice demands that there should be no further time and effort spent in the pursuit of a costs assessment, which is also likely to be unnecessarily protracted and expensive, given all that has occurred to this point.

8. [26]

   On the material, I am satisfied that the Court’s power to make a gross costs order can be exercised fairly between these parties. Mr Griffiths has not sought to attack what was advanced in Ms Whittle’s affidavits. They, I am satisfied, establish a just basis for a gross costs order in the State’s favour of the sum claimed.

9. [27]

   On the evidence, were the parties to be required to pursue an assessment process, Mr Griffiths is likely to be required to pay the State an even greater sum than it is prepared to accept to bring the proceedings to finality.

An order for exemplary damages cannot be made

1. [28]

   Mr Griffiths’ claim for an order for exemplary damages of $500,000 in his favour must be rejected. It simply has no foundation, given that he has not put on any pleadings which properly plead his case, as the Rules require; that the parties have not been heard on his claim; that he has not established any basis on which any order could be made in his favour in the proceedings, let alone an order for exemplary damages; and that his amended statement of claim has been dismissed.

2. [29]

   Accordingly, this claim cannot be entertained and even if it could, would have to be rejected.

3. [30]

   For the reasons given Mr Griffiths is ordered to pay the State’s costs in the gross sum of $180,000.