Gmitrovic v Commonwealth of Australia (No2)

On 13 April 2016 I ordered that there be judgment for the defendants and published reasons for decision in Gmitrovic v Commonwealth of Australia [2016] NSWSC 418. I ordered that, subject to an application for a different order, the plaintiff pay the defendants’ costs of the proceedings.

Mr Gmitrovic has applied for costs orders which are different from that proposed above. It appeared from his initial submission that he sought an order that the Commonwealth pay his costs of the proceedings; or, in the alternative, that the order be that each party bear his, or its, costs of the proceedings. However, he has since confirmed that his sole application is for an order that the defendants bear their own costs of the proceedings.

The defendants contended that the order proposed when judgment was delivered was the appropriate order. In support of their contention, the defendants tendered a Calderbank offer which they had made on 24 March 2016 (which was open for acceptance until 1 April 2016) in which the Commonwealth’s solicitors made the following offer:

The Commonwealth, as part of the Calderbank offer, agreed to forego an order for costs in its favour in the sum of $1,500 if the offer was accepted. Mr Gmitrovic rejected the offer on 28 March 2016. The Commonwealth did not rely on the offer as supporting an application for an indemnity costs order; rather it submitted as follows:

The plaintiff’s submission that the defendants ought bear their own costs is based, in summary, on the following propositions: the Commonwealth’s decision to terminate his employment was harsh, unjust and unreasonable; his career in information technology is essentially over; he could not afford legal representation; and he has no means to meet a costs order.

The termination of the plaintiff’s employment has already been the subject of separate proceedings in the Fair Work Commission as a result of which the Commonwealth was ordered to pay compensation to the plaintiff. Its relevance to the costs application has not been shown. The plaintiff’s future prospects of remunerative employment, while relevant to whether a costs order, if imposed, can be complied with, would not otherwise displace the usual costs order. That the plaintiff could not afford legal representation does not provide a reason to depart from the usual costs order that costs follow the event. The plaintiff’s lack of means to satisfy a costs order may provide a reason why the costs order will be of no value to the defendants; it does not, however, provide a reason why such a costs order ought not be made in the present case.

Costs are in the discretion of the Court: s 98 of the Civil Procedure Act 2005 (NSW). Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that:

The plaintiff brought proceedings for defamation. The only imputations which he established arose from the matter complained of were those which the defendants conceded arose. I found each to be defamatory. The plaintiff conceded that each was published on an occasion of qualified privilege. The plaintiff was wholly unsuccessful in the proceedings. I am not persuaded that any of the matters raised by the plaintiff provide a basis to displace the usual rule that costs ought follow the event.

For the foregoing reasons, I make the following order: