[2018] NSWSC 1048

McGinn v Department of Family and Community Services (No 2)

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

Catchwords

COSTS – Where plaintiff brought proceedings against the defendant – Order made for the summary dismissal of those proceedings – Where plaintiff then sought that such order be set aside – That application also dismissed by a different judge – Determination of the question of costs of the second proceedings – Where plaintiff sought that the judge dismissing those proceedings recuse himself from determining the question of costs on the grounds of actual bias – Where plaintiff asserted various errors in the determination of those proceedings - No basis for recusal – Assertions of error appropriately determined on appeal – Plaintiff entirely unsuccessful in second proceedings – No basis for altering the general rule that the defendant as the successful party should have an order for costs in its favour

Cases cited

McGinn v Department of Family and Community Services[2018] NSWSC 770
Minister for Immigration and Multicultural Affairs v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507
Oshlack v Richmond River Council (1998) 193 CLR 72;[1998] HCA 11

Legislation cited

Uniform Civil Procedure Rules 2005 (NSW)

Judgment

INTRODUCTION

[1]
On 1 June 2018 I dismissed proceedings brought by the plaintiff against the defendant in which the plaintiff sought that a judgment of McCallum J delivered on 14 February 2018 be set aside pursuant to r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”): McGinn v Department of Family and Community Services [2018] NSWSC 770. On that occasion I gave the parties an opportunity to provide short written submissions as to the appropriate order as to costs. Those submissions having now been received, this judgment deals with that issue.
[2]
It was the defendant’s position that as it had been wholly successful in the proceedings, costs should follow the event. The defendant submitted that there was no proper basis upon which the operation of that general rule should be displaced. The defendant submitted in particular that as the successful party, it had a reasonable expectation of costs being awarded in its favour: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67].
[3]
The plaintiff submitted that I should recuse myself from determining the question of costs on the basis of bias. As far as I am able to ascertain from the plaintiff’s written submissions, the basis of that application appears to be an assertion that in dismissing the proceedings, I made a number of errors. It is apparent from the plaintiff’s written submissions that she alleges actual bias in the form of prejudgment: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J.
[4]
The plaintiff’s submission that I erred in dismissing the proceedings that she had instituted does not persuade me that I should recuse myself from determining the question of costs. To the extent that such application relies upon one or more asserted errors, those matters are properly determined by the Court of Appeal in the event that the plaintiff wishes to pursue her rights in that regard.
[5]
Rule 42.2 of the Rules is in the following terms:
[6]
In circumstances where the plaintiff was completely unsuccessful in the proceedings there is no basis upon which to alter the operation of the general rule.
[7]
Accordingly I make the following order:
1. (1)
  The plaintiff is to pay the defendant’s costs as agreed or assessed.