Vassallo v Deitz (Costs)

1. [1]

   In March 2024, I gave judgment in this matter, refusing the leave sought by Mr Vassallo to file an amended summons and dismissing the proceedings: Vassallo v Deitz [2024] NSWSC 246. This judgment deals with the remaining dispute about the costs of the proceedings.

2. [2]

   I had directed the parties to confer about costs and either to file consent orders, or in the event of any dispute, to approach the Court with short written submissions about the competing orders sought.

3. [3]

   It appears from the defendants’ written submissions that despite attempts to confer with Mr Vassallo about costs, he simply filed his submission. His short submission was:

4. [4]

   For their part, the defendants sought the usual costs order under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), contending that there was no basis for any contrary order: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97; [1998] HCA 11; Latoudis v Casey (1990) 170 CLR 534 at 566-567; [1990] HCA 59. That ordinarily requires some relevant misconduct in the proceedings to be established.

5. [5]

   The onus fell on Mr Vassallo to justify a departure from the ordinary rule, but what he advanced was incapable of doing so. The March judgment was concerned with his application for leave to file an amended pleading and if that was refused, the question of whether the proceedings should be struck out. The results of those proceedings provided no proper basis for any departure from the usual order.

6. [6]

   I am satisfied that there was nothing “out of the ordinary” about these proceedings, what arose to be determined on the motion, or how the defendants pursued their case, which would warrant any departure from the general rule that costs follow the event. That requires Mr Vassallo to bear the defendants’ costs, having failed as he did on the case he advanced.

7. [7]

   In September 2023, Chen J had struck out Mr Vassallo’s amended statement of claim, for thoroughly explained reasons, but gave him leave to file an amended summons: Vassallo v Deitz [2023] NSWSC 1121. Chen J’s judgment clearly put Mr Vassallo on notice of the problems he faced in repleading.

8. [8]

   Given how Mr Vassallo sought to replead his case, I concluded that, unrepresented as he was, he misunderstood fundamental legal concepts, principles and legislation on which his case necessarily turned. That led to the conclusion that the proposed summons still did not disclose a reasonable cause of action, or comply with applicable Rules. In the result the leave he sought to pursue the defendants, who are Council employees and a Local Court Magistrate, had to be refused.

9. [9]

   I also concluded that the proceedings had to be dismissed, Mr Vassallo still not having complied with the essential pleading requirements Chen J had explained. I was also satisfied to a high degree of certainty about the ultimate outcome of the proceedings, if they were allowed to go to trial on the proposed pleading.

10. [10]

    In the result, I am also satisfied that the defendants are entitled to the usual costs order which they seek. Despite what Mr Vassallo advanced by his submission, that is what justice requires in the circumstances which now arise to be considered, he not having established any proper basis, as he must, for departure from the usual order.

11. [11]

    That was certainly not established by the views he expressed in his submission.

Orders

1. [12]

   For these reasons I order that Mr Vassallo pay the defendants’ costs of the proceedings, as agreed or assessed.