Gillies v State of New South Wales & Ors (No 2)

On 30 May 2022 I dismissed the proceedings brought by the plaintiff against the first, second, third, fourth, fifth, sixth and seventh defendants. [1] On that occasion I gave the parties the opportunity to provide written submissions as to costs.

In submissions dated 1 June 2022, the plaintiff submitted that any order for costs against him would “serve as a further grounds of compounding targeted malicious and aggravated bias action towards the plaintiff". [2] He expressly acknowledged that costs are in the discretion of the Court, and that r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) “provides, relevantly, that costs follow the event unless the Court considers some other order ought be made”. [3]

Counsel for the defendants submitted that there was no reason to depart from the usual rule that costs should follow the event. [4] In advancing that submission, counsel drew attention to the fact that on 1 February 2022 the solicitor for the defendants wrote to the plaintiff pointing out the deficiencies in the statement of claim, and inviting him to withdraw it. The plaintiff refused to do so, and also refused to concede that his statement of claim was deficient after being served with the defendants’ written submissions and notice of Motion seeking a dismissal of the proceedings. [5]

Section 98(1) of the Civil Procedure Act 2005 (NSW) is in the following terms:

The “usual rule” as to costs is set out in r 42.1 of the rules in the following terms:

In my view, there is no reason to depart from the usual rule that costs should follow the event. The defendants are entitled to their costs given their success in the proceedings. [6]

For these reasons I make the following order: