Qasim v Bird & Ors (No 3)

1. [1]

   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.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   On 22 March 2022 my Associate, at my direction, sent an email to the plaintiff saying:

7. [7]

   In response, the plaintiff forwarded an email to my associate on 22 March which said (inter alia):

8. [8]

   My Associate responded on 22 March saying (inter alia):

9. [9]

   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.

10. [10]

    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.

11. [11]

    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)):

12. [12]

    In Hamod v State of New South Wales [2011] NSWCA 375, Beazley JA (with whom Giles and Whealy JJA agreed) said:

13. [13]

    In Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863, Beech-Jones J said:

14. [14]

    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.

15. [15]

    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”.

16. [16]

    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].

First defendant

1. [17]

   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.

Second defendant

1. [18]

   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.

The Tribunal defendants

1. [19]

   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.

Seventh defendant

1. [20]

   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.

2. [21]

   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.

3. [22]

   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].

4. [23]

   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.

5. [24]

   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.

6. [25]

   I make the following orders: