Bowers v NSW Legal Services Commissioner and Ors (Costs)

On 6 October 2021 [1] I delivered judgment dismissing proceedings brought by the plaintiff against the New South Wales Legal Services Commissioner. I also made an order dismissing an amended notice of motion dated 28 April 2021 (the motion) in which the plaintiff sought to file an amended summons which named five defendants, to whom I referred in the judgment as follows:

The only defendant who was named in the summons commencing the proceedings was the NSW Legal Services Commissioner. The effect of the orders sought by the plaintiff in the motion was to join four additional defendants to the proceedings, in the absence of any order being sought pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (the rules).

Having made the orders referred to in [1] above, I ordered that each party provide written submissions as to costs within seven days. As to that order:

Counsel submitted that there was no reason why costs should not follow the event, and that the plaintiff should therefore pay the Commissioner’s costs of the proceedings. Counsel also submitted that the fact that the plaintiff is legally qualified, but was self-represented, did not militate against an order for costs being made in the Commissioner’s favour. [2]

Counsel for Ms Bridgett acknowledged that having dismissed the proceedings pursuant to the Commissioner’s motion, it had not been necessary for me to determine the motion on its merits. However, counsel submitted that Ms Bridgett had nevertheless come to defend the motion and that in those circumstances I should, in the exercise of my discretion, award Ms Bridgett her costs of the motion on the ordinary basis. Counsel adopted the submissions made on behalf of the Commissioner set out in [4] above as to the plaintiff’s status as a self-represented litigant.

Section 98(1) of the Civil Procedure Act 2005 (NSW) confers a wide discretion on the court in relation to an award of costs and is in the following terms:

Rule 42.1 of the rules is in the following terms:

Given that the Commissioner was successful in having the plaintiff’s proceedings dismissed, there is no reason why costs should not follow the event. Those costs should include the costs of the motion.

Having come to the conclusion that the proceedings should be dismissed, it followed that the motion was also dismissed. The effect of the orders sought in the motion, at least in part, was to join Ms Bridgett as a defendant to the proceedings. Counsel for Ms Bridgett took an active part on the hearing of the motion, and made lengthy and detailed submissions opposing the orders which were sought. In all of these circumstances, there is no reason why my discretion should not be exercised in favour of Ms Bridgett in respect of her costs of the motion.

I make following orders: