Woodhouse v Thalis (No. 2)

1. [1]

   In these proceedings I delivered judgment on 15 December 2017 refusing an application brought by the plaintiff to extend the time in which to appeal against a decision of the NSW Civil and Administrative Tribunal: Woodhouse v Thalis [2017] NSWSC 1725. On that occasion I gave the parties the opportunity to provide written submissions as to costs in the event that no agreement could be reached.

2. [2]

   This judgment deals with that issue.

Submissions of the plaintiff

1. [3]

   The plaintiff submitted that in all of the circumstances, any claim made by the defendant for costs should be particularised so as to enable him to make some assessment as to whether or not those costs were reasonable. The plaintiff further submitted that the proceedings were brought in the public interest and involved a challenge to the election of a public official and that such cases should, as a matter of public policy, be permitted to be brought without the threat of an adverse costs order.

2. [4]

   The plaintiff further submitted that although the general rule is that costs follow the event, there remained a discretion in the Court to make an alternative order. He submitted that because a summons seeking leave to appeal had been lodged, the “event” was “not finalised”, and that a costs order was therefore not appropriate.

3. [5]

   It was submitted that in all of these circumstances, the issue of costs was “now subject to appeal”; that “it should not be decided prematurely” and that “costs should follow the final event”.

Submissions of the defendant

1. [6]

   It was submitted on behalf of the defendant that the plaintiff should pay his costs of the proceedings on an indemnity basis that the proceedings brought by the plaintiff amounted to “no more than a vexatious and, at times, scandalous re-agitation of issues disposed of by the Tribunal”. It was further submitted that the evidence relied upon by the plaintiff was misconceived and of no assistance to the Court, and that the plaintiff’s conduct of the proceedings gave rise to an inference that he did not wish to have his case determined by the Court on its merits, but had instead wished to engage the defendant in protracted litigation for its own sake.

2. [7]

   It was submitted that in the event that I was not persuaded that costs should be ordered on an indemnity basis, an order should nevertheless be made that the costs be paid on the ordinary basis. It was submitted that costs should follow the event and that, in particular, there was no basis which would justify invoking any “public interest” exception to the ordinary rule.

Consideration

1. [8]

   The general rule as to costs is set out in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) in the following terms:

2. [9]

   Further, the court has a general power to determine by whom, to whom and to what extent costs are to be paid pursuant to s 98 of the Civil Procedure Act 2005 (NSW) which is in the following terms:

3. [10]

   The amount of costs which might be payable by one party to another is, in the event that no agreement can be reached between the parties, a matter for an assessment. That plays no part in the exercise of my discretion, nor does the fact that the plaintiff has apparently sought leave to appeal against my decision. In that regard, the expression “follow the event” refers to the practical result of a particular claim: Windsurfing International Inc v Petit (1987) AIPC-90-441. The practical result of the proceedings brought by the plaintiff before me was that the plaintiff failed. In these circumstances, there is no reason why costs should not follow the event.

4. [11]

   However, I am not persuaded that the plaintiff’s conduct of the proceedings justifies an award of costs on an indemnity basis. The effect of the submissions advanced by the defendant in support of that application, at least in part, was that the plaintiff had engaged in the litigation for purposes which were other than bona fide. That is an obviously serious allegation and, in my view, is not one which is made out.

5. [12]

   It follows that costs should be, payable by the plaintiff on the ordinary basis.

Orders

1. [13]

   I make the following order:

   1. (1)

      The plaintiff is to pay the defendant’s costs as agreed or assessed.