Golden v V’landys (No 2)

On 17 November 2015 I made orders and published reasons for my decision: Golden v V’landys [2015] NSWSC 1709. I made the following costs order:

By letter to my Associate dated 26 November 2015, Joseph Golden (the plaintiff) applied for an order that the order that he pay the defendants’ costs “be reversed”. I understood him to seek an order that there be no order as to costs. The application was made two days outside the seven day period allowed by the order and was supported by brief written submissions.

Although the defendants submitted that I ought not entertain the plaintiff’s application because it was made outside the time provided for in my order, they nonetheless made submissions as to why costs ought follow the event.

The time between the expiry of the opportunity in the order to apply for a different order and the forwarding of the application to my Associate was short (in the order of two days). The plaintiff explained that his (now former) solicitors sent him a scanned copy of the reasons by email which he was unable to access until 21 November 2015 (as he does not have internet access on the rural property where he lives) and that he responded within seven “business” days. Neither of the defendants identified any prejudice they would suffer as a result of the extension of time.

I am disposed to extend the time within which the plaintiff can made his application as I consider it to be in the interests of justice to do so, having regard to the matters in ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW).

The plaintiff relies on the following in support of his submission that there should be no order as to costs:

The first and second defendants contended that the appropriate order was that the plaintiff pay the defendants’ costs of the proceedings.

The defendants submitted (separately), in substantially similar terms, that there is a presumption that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. They contended that the presumption can only be displaced where there has been some disentitling conduct on the part of the successful party: Oschlack v Richmond River Council (1998) 193 CLR 72 at [69]-[70] per McHugh J. They submitted that there was no basis to rebut the presumption in the present case. The second defendant made the further submission that any alleged deficiencies in the plaintiff’s legal representation were not relevant to the appropriate costs order to be made between the parties.

The costs of the proceedings are in the discretion of the Court: s 98 of the Civil Procedure Act. However, the discretion is to be exercised judicially. Generally speaking, costs follow the event. In the present case, the defendants were successful and the plaintiff was unsuccessful. Accordingly, absent other considerations, the appropriate order would be that the plaintiff pay the defendants’ costs.

UCPR 42.1 provides:

The reason for the general principle that costs ought follow the event was articulated by McHugh J in Oschlack v Richmond River Council at [67]-[68] in the following terms:

The loss of litigation, whether by plaintiff or defendant, can cause hardship. Litigation is expensive. Although the hearing of these proceedings occupied only two days (due to the efficient conduct of the case by the legal representatives of all parties), I assume that substantial preparation was required and many documents needed to be reviewed for the purposes of adducing the evidence. All of this was brought about by the plaintiff’s decision to commence and prosecute his claims for relief in the proceedings. The plaintiff has not identified any conduct which can be attributed to either of the defendants which makes it appear to me that I should make any order other than that costs ought follow the event.

The conduct relied upon by the plaintiff in support of the order he seeks is the conduct of his legal advisers. Whatever the merits or otherwise of his criticisms of his legal representatives (as to which I refrain from expressing any view), these are matters which I do not regard as warranting the displacement of the usual rule that costs follow the event. It does not appear to me that any order other than the usual order ought be made.

For the foregoing reasons I make the following orders: