APC v Mr B (No 4)

1. [1]

   In December 2024 I gave judgment for APC, concluding that she had met the onus which fell upon her to prove her case that Mr B had repeatedly sexually abused her while she was a child: APC v Mr B (No 2) [2024] NSWSC 1608. In March 2025 I dealt with the damages and further orders which APC pursued, including as to costs, which totalled $6,070,722.25, ordering her to recalculate her damages for future care in accordance with the conclusions which I had reached: APC v Mr B (No. 3) [2025] NSWSC 142.

2. [2]

   APC recalculated her damages to be $4,910,191.67. By submissions advanced on 13 March she finally pressed damages of:

3. [3]

   The orders APC then proposed were:

4. [4]

   In the March judgment I also ordered that if he disagreed with APC’s calculations or proposed orders, that Mr B file and serve the orders he proposed, with a short explanation of his calculations, on or before 22 March 2025. Failing which I would proceed to make final orders. He later sought and was given an extension until 25 March, but still he filed nothing.

5. [5]

   Mr B having yet again been given a fair opportunity to advance his case, which he did not take advantage of, I am satisfied that justice now requires that what remains to be decided be dealt with, without the benefit of his calculations or submissions.

6. [6]

   The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42. APC has already successfully pursued a departure from the usual order, I having concluded that she is entitled to an indemnity costs order: March judgment at [121]-[125].

7. [7]

   The Court undoubtedly also has power under s 98 of the Civil Procedure Act 2005 (NSW) to make a gross costs order, as the finally suggested orders provide for. Such an order may be made at any time before costs are referred for assessment: s 98(4)(c). Such an order is appropriate where in a lengthy or complex case it is desirable to avoid the expense, delay and aggravation likely to be involved in a contested assessment. The applicable principles were discussed in Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820].

8. [8]

   Such an application must be determined on the evidence which the parties lead and whether it “provides good reason to avoid the "expense, delay and aggravation" arising out of the process of quantifying the entitlement to costs: Beach Petroleum NL v Johnson (1995) 57 FCR 119 at 120”: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [28]- [38].

9. [9]

   If APC wishes now to pursue a gross costs order the requirements of s 56 of the Civil Procedure Act must also be borne in mind. The Civil Procedure Act requires that the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings are to be given effect.

10. [10]

    Given this obligation and the course which these proceedings have taken thus far, it is unlikely that the parties will be able to agree about the amount of any gross costs order. It follows that if APC pursues an application for such an order, not only should she file and serve the necessary motion, supported by an affidavit, but she should also serve the written submissions on which she relies.

11. [11]

    Mr B should then also again have an opportunity to file evidence and submissions on which he wishes to rely. If he does not wish to be heard, the application for a gross costs order can be dealt with on the papers. If he does, the matter can be listed for further, short oral argument, if that be necessary. The orders which I now make reflects this.

12. [12]

    I am also satisfied that in the present circumstances, justice requires that the freezing orders first made on 4 August 2023 be continued, Mr B not opposing that course.

Orders

1. [13]

   For these reasons I thus order:

   1. (1)

      The defendant is to pay the plaintiff damages in the amount of $4,910,191.67.

   2. (2)

      The freezing orders upon the defendant made by Wright J on 4 August 2023 and continued by the Court on multiple occasions, be continued until payment of the judgment sum by the defendant.

   3. (3)

      The applicant is to file and serve any application for a gross sum costs order within 28 days of today.

   4. (4)

      The matter is listed for further directions before Schmidt AJ on 23 April 2025.

   5. (5)

      The defendant is to pay the plaintiff’s costs from 6 March 2025 to date.