Jainzii Pty Ltd v Chief Executive of Create NSW, an agency of the Department of Creative Industries, Tourism, Hospitality and Sport (No 2)

1. [1]

   In October 2024 I gave judgment for Jainzii on an application for judicial review of two decisions made by Create NSW, an agency of the Department of Creative Industries, Tourism, Hospitality and Sport, which operated a State government funded scheme known as “Creative Kids”, which resulted in the suspension of its account and the refusal to pay it some $158,700 which it claimed it was owed under the scheme.

2. [2]

   The parties do not agree on the terms of the final orders to be made, including as to costs.

3. [3]

   The orders Jainzii proposed were:

4. [4]

   Those proposed by Create NSW were:

Orders

1. [5]

   I am satisfied that the declarations and orders which properly reflect the conclusions reached in the October judgment, for the reasons there given, are:

Costs

1. [6]

   I have also concluded that no basis for a departure from the usual costs order under the Uniform Civil Procedure Rules 2005 (NSW), that costs follow the event, has been established: r 42.

2. [7]

   Jainzii’s case was that there should be no departure from the usual order.

3. [8]

   Create NSW opposed this, contending that the appropriate costs order, given the conclusions reached in the October judgment, was that each party bear its own costs. That reflecting that Jainzii had not succeeded on its estoppel case.

4. [9]

   Reliance was also placed on the costs orders made on the motion by which Jainzii’s estoppel claim was added, to which Create NSW finally consented, Jainzii having agreed to a costs thrown away order.

5. [10]

   There was no issue about the Court’s power to make any of the costs orders sought, or the applicable principles: s 98 Civil Procedure Act 2005 (NSW).

6. [11]

   In Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2); Taylor v LK Group Investments Pty Ltd (No 2) [2023] NSWCA 322 at [7], the applicable principles explained in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] were referred to:

7. [12]

   Despite the outcome of the estoppel claim, I am not persuaded that there should be any departure from the usual costs order in this case.

8. [13]

   Ms Worthing addressed the basis of all of Jainzii’s claims in her evidence, but the pursuit of the estoppel claim added but little to what arose to be considered on the cases which the parties advanced, with the result that the matter was heard within a day, having been listed for two.

9. [14]

   The evidence concerned the Create NSW scheme, how it had been established and operated, so far as Jainzii was concerned, how the challenged decisions came to be made and communicated, as well as their results, given how Jainzi responded. That was met by the evidence which Create NSW relied on.

10. [15]

    The estoppel claim turned on reliance. For reasons explained in the October judgment that was not established by Ms Worthing’s evidence.

11. [16]

    While the estoppel claim was not established by that evidence, still it had to be accepted that Jainzii had not been given the procedural fairness to which it was entitled. The result was that the two challenged decisions had to be set aside, given how they had deprived it not only of payment for the vouchers it had earlier been notified would be paid, but also the suspension of its right to continue as a provider under the scheme.

12. [17]

    In the result I am unable to conclude that the estoppel claim was either clearly dominant, or separable. That was implicitly accepted by Create NSW’s case that each party should bear its own costs, given the difficulty of separately assessing the costs of the estoppel claim.

13. [18]

    I am unable to accept that this would reflect a just exercise of the costs discretion, given all the circumstances which have to be considered. They including, of course, the conclusions which had to be reached about the procedural fairness to which Jainzi was entitled and did not receive. I am thus not satisfied that the order Create NSW urged can properly be made.

14. [19]

    Nor am I satisfied that there is any just basis for refusing to award Jainzii the usual costs of the proceedings in which it succeeded as it did and attempting the difficult exercise of differentiating between the costs of the particular issues on which Jainzii succeeded and that on which it failed, given the evidence on which those issues turned.

15. [20]

    In the result I am satisfied that there should be no departure from the usual order.

Final orders:

1. [21]

   For these reasons I:

   1. (1)

      declare that in making the two challenged decisions the State agency, Create NSW, did not afford Jainzii the procedural fairness to which it was entitled, they being:

   2. (2)

      order that: