Supreme Court New South Wales Medium Neutral Citation: Golden v Anderson & Ors (No 2) [2023] NSWSC 339 Hearing dates: 3 April 2023 Date of orders: 3 April 2023 Decision date: 03 April 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: First and second defendants: 1 the plaintiff is to pay the first and second defendants' costs of the proceedings; 2 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first and second defendants' costs of the proceedings fixed in the sum of $15,000; and 3 the plaintiff is restrained from commencing in any Court or Tribunal any proceedings against either of the first or second defendants (other than by a claim in the nature of a defence, cross-claim, or cross-summons) which arise from the same or similar facts as those alleged in these proceedings, without the leave of a Judge of the Supreme Court of New South Wales, unless and until the plaintiff has paid the costs ordered in Order 2 above. Fourth to sixth defendants: 4 the plaintiff is to pay the fourth, fifth and sixth defendants' costs of the proceedings; 5 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the fourth, fifth and sixth defendants' costs of the proceedings fixed in the sum of $25,000; and 6 the plaintiff is restrained from commencing in any Court or Tribunal any proceedings against any of the fourth, fifth or sixth defendants (other than by a claim in the nature of a defence, cross-claim, or cross-summons) which arise from the same or similar facts as those alleged in these proceedings, without the leave of a Judge of the Supreme Court of New South Wales, unless and until the plaintiff has paid the costs ordered in Order 5 above. Catchwords: COSTS — Party/Party — Self represented litigant – application by defendants for gross sum costs orders – whether gross sum costs orders should be made CIVIL PROCEDURE — Application to restrain plaintiff from commencing further proceedings without paying the costs of these proceedings — where plaintiff has indicated he will commence further proceedings on same or similar facts — whether a restraining order against plaintiff should be made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 67, 98(4)(c) Uniform Civil Procedure Rules 2005 (NSW), r 12.10 Cases Cited: Golden v Anderson & Ors [2023] NSWSC 97 Harrison v Schipp (2002) 54 NSWLR 738 K Sheridan v Colin Biggers & Paisley [2019] NSWSC 621 Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531 Category: Procedural rulings Parties: Joseph Paul Golden (Plaintiff) Kevin John Anderson (First Defendant) Dominic Perrottet (Second Defendant) Murray Watt (Fourth Defendant) David Littleproud (Fifth Defendant) Barnaby Joyce (Sixth Defendant) Representation: Counsel: S Chordia (First and Second Defendants) S Nixon SC with V Thomas (Fourth, Fifth and Sixth Defendants) Solicitors: Plaintiff (Self-represented) Crown Solicitor's Office (First and Second Defendants) Ashurst Australia (Fourth, Fifth and Sixth Defendants) File Number(s): 2022/189359 Publication restriction: None REVISED EX TEMPORE Judgment 1. This matter comes back before me for the purposes of applications by the first and second defendants and the fourth, fifth and sixth defendants for gross sum costs orders and also orders that the plaintiff be restrained from commencing proceedings in any Court or Tribunal against any of those defendants, until such time as the costs have been paid or with leave of the Court. 2. At the commencement of the hearing, I arranged for the matter to be called. There was no appearance by the plaintiff. I then asked the court officer to contact the plaintiff via telephone. He did so in my presence. There was a short conversation between the court officer and the plaintiff. As a result of the information conveyed to me by the court officer, I am satisfied that the plaintiff does not intend to appear today. Indeed, he passed on his message through the court officer that he was waiting to hear back from the Judicial Commission about me (as I understand it) before he would be appearing. 3. The plaintiff's response to the telephone call from the court officer is consistent with some of the emails from the plaintiff that I have been sent or copied in on. I am satisfied that the plaintiff has been given proper notice of the hearing today and has made a deliberate decision not to attend. I am satisfied that the plaintiff has been informed of the nature of the applications being made today and, despite that, has decided not to attend. Indeed, following his indication to the fourth, fifth and sixth defendants that he would not be attending, the solicitors for the fourth, fifth and sixth defendants wrote specifically to the plaintiff informing him that they would be proceeding with the application whether or not he appeared. In the circumstances, I am satisfied that the matter should proceed. 4. Ms Chordia appeared for the first and second defendants. Mr Nixon of Senior Counsel appeared with Ms Thomas for the fourth, fifth and sixth defendants. Ms Chordia and Mr Nixon SC seek identical orders, being: 1. an order that the plaintiff pay the defendants' costs of the proceedings; 2. pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) ('CPA'), an order that the plaintiff pay the defendants' costs of the proceedings fixed on a gross sum determined by the Court; and 3. an order that the plaintiff is restrained from commencing in any Court or Tribunal proceedings against either the first and second defendants or the fourth, fifth and sixth defendants (other than a claim in the nature of a defence cross-claim or cross-summons) which arise from the same or similar facts as those alleged in these proceedings, without the leave of a Judge of the Supreme Court of New South Wales, unless and until the plaintiff has paid the costs which may be ordered. 1. The orders sought by the defendants form part of the orders sought in the original motion which I determined on 6 February 2023. [1] On that day, I made an order that the proceedings be dismissed and other orders relating to costs issues. As I outlined in that judgment, and as has been outlined in a number of other cases involving the plaintiff which all arise from similar facts, the plaintiff continues to sue various people in relation to what he claims was an injustice to him caused by the fraudulent misconduct of Racing NSW in the administration of its CHAPS scheme. It is not necessary to say anything further about the nature of the proceedings as they are summarised in my earlier judgment and, indeed, have been summarised in a number of other earlier cases (which I again referred to in my earlier judgment). 2. In support of their application, the first and second defendants rely on an affidavit of Eloise Kneebone affirmed 13 February 2023. Ms Kneebone is a solicitor employed by the NSW Crown Solicitor's Office. In her affidavit, she sets out the charges and rates that have been incurred by the first and second defendants. She annexes to the affidavit tax invoices and various details of the work done to demonstrate the reasonableness of those charges. 3. The fourth, fifth and sixth defendants rely on two affidavits of John Peter Pavlakis dated 13 February 2023 and 21 March 2023. Mr Pavlakis is a partner at Ashurst and is the solicitor for the fourth, fifth and sixth defendants. In his first affidavit, he sets out the basis upon which the fourth, fifth and sixth defendants have been charged. He also itemises the relevant costs and disbursements. I note that the total costs incurred amount to $97,639.24. Mr Pavlakis estimates that the costs recoverable on a party/party basis would be $58,954.57. 4. Like Ms Kneebone, Mr Pavlakis detailed the basis upon which the charges had been incurred, as well as specifying the applicable hourly rates. Annexed to his second affidavit is a copy of a statement of claim filed by the plaintiff on 28 February 2023. On this occasion, the plaintiff has named John Howard, the former Prime Minister, as well as Tony Burke, a current and former Minister of Federal Parliament, as defendants. 5. The defendants in these proceedings submit that the plaintiff has once again demonstrated a determination to commence proceedings against persons whom he perceives to be responsible for the initial injustice 15 years ago. On the most recent occasion, he has identified two new defendants. Determination Applications for gross sum costs 1. As is well-known, the Court has a broad discretion to award costs. 2. The defendants seek gross sum costs orders pursuant to s 98(4)(c) of the CPA. A gross sum costs order may be ordered in circumstances in which the Court considers that it can be done fairly between the parties and the Court has sufficient confidence in arriving at an appropriate sum on the available materials (see Harrison v Schipp (2002) 54 NSWLR 738 at [22]). 3. Matters which might be taken into account in determining whether to make a gross sum costs order include: 1. the impecuniosity of the plaintiff; 2. the likelihood of there being a significant and perhaps insolvable dispute between the parties on the question of costs; 3. the complexity of the matter; 4. the difficulties in dealing with the other party on the question of costs or in the proceedings generally; and 5. whether the amount sought represents an appropriate discount on the actual costs incurred. 1. It seems to me that all of those factors are relevant to this application. Further, the plaintiff has pursued eight earlier proceedings arising out of the same set of facts. He has sent communications to the parties (often copying me in) that he has no intention of accepting the result and he continues to rail against the system and those involved in it. 2. As I understand it, the plaintiff believes that I should not be determining this application on the basis that he has reported me to the Judicial Commission of NSW alleging that I am corrupt and biased. He is concerned that the Judicial Commission has not yet dealt with his application. None of those matters cause me to disqualify myself. 3. I heard the original proceedings in this matter. I have also determined one of the plaintiff's earlier claims. That, of itself, does not give rise to any bias or apprehension of bias. 4. I have reviewed the evidence presented by the defendants in support of their applications. Having regard to this evidence, I am satisfied that the amounts incurred by the defendants in defence of these proceedings at the hearing of the original application have been properly incurred, although I hasten to add that it is not my function to undertake an assessment of the costs and disbursements occurred. That is a matter between the parties and their clients. 5. Further, I am satisfied that the amounts sought represent an appropriate discount for the purposes of the gross sum costs orders. 6. The discount sought by the first and second defendants on their costs is approximately 40 per cent and the discount by the fourth, fifth and sixth defendants is approximately 60 per cent. 7. In the circumstances, I am satisfied that this is an appropriate matter for the awarding of gross sum costs orders. I will make the orders sought by the defendants in the amounts sought. Restraint from commencing further proceedings 1. The second order sought by the defendants is an order that the plaintiff be restrained from commencing further proceedings against them without leave of the Court or until payment of the costs. 2. Again, the power to make such an order is well-known. The principles were summarised by Black J in K Sheridan v Colin Biggers & Paisley [2019] NSWSC 621 (at [26]-[31]). The Court has the power under s 67 of the CPA and r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) to restrain a party from commencing further proceedings against the defendants in that Court. Further, pursuant to the Court's inherent jurisdiction, it may extend that order to proceedings in any Court. As Adamson J (as her Honour then was) said in Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531 (at [61]), the order must be proportional and directed to the prejudice which would be suffered if the order was not included. 3. As I have indicated, this is the eighth time that the plaintiff has brought proceedings for the purpose of agitating essentially the same issues. As is evidenced by the very latest proceedings, the plaintiff seems intent on continuing to bring proceedings against anyone he can think of, so as to bring the attention of the Court and the public to that which he alleges. 4. In the circumstances, this is an appropriate matter for the making of the restraining order. The orders I make are: First and second defendants: 1. the plaintiff is to pay the first and second defendants' costs of the proceedings; 2. pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first and second defendants' costs of the proceedings fixed in the sum of $15,000; and 3. the plaintiff is restrained from commencing in any Court or Tribunal any proceedings against either of the first or second defendants (other than by a claim in the nature of a defence, cross-claim, or cross-summons) which arise from the same or similar facts as those alleged in these proceedings, without the leave of a Judge of the Supreme Court of New South Wales, unless and until the plaintiff has paid the costs ordered in Order 2 above. Fourth to sixth defendants: 1. the plaintiff is to pay the fourth, fifth and sixth defendants' costs of the proceedings; 2. pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the fourth, fifth and sixth defendants' costs of the proceedings fixed in the sum of $25,000; and 3. the plaintiff is restrained from commencing in any Court or Tribunal any proceedings against any of the fourth, fifth or sixth defendants (other than by a claim in the nature of a defence, cross-claim, or cross-summons) which arise from the same or similar facts as those alleged in these proceedings, without the leave of a Judge of the Supreme Court of New South Wales, unless and until the plaintiff has paid the costs ordered in Order 5 above. ********** Endnote 1. See Golden v Anderson & Ors [2023] NSWSC 97. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2023