District Court New South Wales Medium Neutral Citation: Whitehall v Oxborough [2023] NSWDC 167 Hearing dates: 7 December 2023 and written submissions dated 21 February 2023 Date of orders: 23 May 2023 Decision date: 23 May 2023 Jurisdiction: Civil Before: Scotting DCJ Decision: 1 The plaintiff is to pay the defendant's costs of the proceedings on an indemnity basis assessed at $300,000.00. Catchwords: COSTS – gross sum costs order Legislation Cited: Civil Procedure Act 2005 Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375 Idoport Pty Ltd v National Australia Bank [2007] NSWSC 23 Category: Costs Parties: Nathanial John Whitehall (Plaintiff) Terry Oxborough (Defendant) Representation: Counsel: R Potter SC (Defendant) Solicitors: Self-represented (Plaintiff) Rostron Carlyle Rojas (Defendant) File Number(s): 2018/159739 Publication restriction: None JUDGMENT Introduction 1. The defendant seeks a gross sum costs order. 2. The plaintiff's proceedings were dismissed on 1 December 2022 after the plaintiff did not attend Court on the date when the proceedings were listed for hearing. This followed a period where the plaintiff was self-represented and participated intermittently in the proceedings. 3. On 1 December 2022 I ordered that the plaintiff pay the defendant's costs of the proceedings on an indemnity basis because there had been numerous occasions of non-compliance by the plaintiff with directions made in the proceedings. 4. The defendant relied on three affidavits of Ella Theresa Mackintosh affirmed 23 November 2022, 9 December 2022 and 22 December 2022. The Relevant Law 1. Section 98(4)(c) Civil Procedure Act 2005 empowers the Court to award a specified gross sum instead of assessed costs. 2. In Idoport Pty Ltd v National Australia Bank [2007] NSWSC 23 the Court at [9] recited the principles relevant to the exercise of discretion as follows: 1. the purpose of the rule is to avoid expense, delay and aggravation involved in protracted litigation; 2. the court must be confident that the approach taken to the estimate of costs is logical, fair and reasonable; 3. the court must have sufficient confidence in arriving at an appropriate sum on the materials available; 4. a gross sum assessment, by its very nature, does not envisage a process similar to that of a traditional assessment of costs; 5. the gross sum can only be fixed broadly having regard to the information before the court; 6. the power to award a gross sum must be exercised judicially, after giving the parties adequate opportunity to make submissions on the matter; 7. the court must be astute to prevent prejudice to the respondents by overestimating a costs and on the other hand must be astute not to cause an injustice to the successful party by a "fail safe" discount on the cost estimates submitted to the court. 1. In Hamod v State of New South Wales [2011] NSWCA 375 the Court of Appeal at [816] – [820] set out a number of relevant considerations as follows: 1. the relative responsibility of the parties for the costs incurred; 2. the degree of any disproportion between the issue litigated in the costs claimed; 3. the complexity of the proceedings in relation to their costs; 4. the capacity of the unsuccessful party to satisfy any costs liability; 5. the power may be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result in the proceedings; and 6. the costs award may involve an impressionistic discount of the costs actually incurred or estimated in order to take into account the contingencies that would be relevant in any formal costs assessment. Factual Background 1. These proceedings were commenced in May 2018. They were listed for trial on 1 December 2022 with an estimate of seven days. The plaintiff did not attend Court on the date fixed for trial and there had been various non-compliance with the orders of the Court in preparation for the trial. The Defendant's Submissions 1. The defendant submitted that the assessment of costs would incur further expense and delay in the finalisation of the matter, which has been on foot for some time. It is likely that the assessment of costs would be protracted taking into account the plaintiff's history of sporadic involvement in the proceedings. 2. The defendant submits that the Court should take into account that a substantial proportion of the costs were incurred in preparation for the trial in circumstances where the plaintiff's intention to prosecute the proceedings was questionable. 3. The defendant provided evidence at Court of all relevant Costs Agreements and invoices rendered to the defendant in respect of the proceedings. The quantum of the gross sum of costs order sought is $321,946.08 made up as follows: (a) Professional costs $222,966.13 (b) GST on professional costs $22,296.60 (c) Counsel's fees $64,175.00 (d) GST on counsel's fees $6,417.50 (e) Disbursements $6,090.85 Plaintiff's Submissions 1. The plaintiff's submissions on the gross sum costs order were predicated on his assertion that the defendant had defamed him in the relevant publications. It was submitted by the plaintiff that the defendant, in his Defence, admitted liability for some of the publications. 2. The plaintiff submitted that the proceedings were in part delayed by an injunction granted in the Supreme Court of New South Wales in favour of the Civil Aviation Safety Authority (CASA). Further delays were incurred through attempts to obtain pro bono representation for the plaintiff through the New South Wales Bar Association. The plaintiff was assisted on a pro bono basis by barristers from time to time, but not continuously throughout the proceedings. 3. The plaintiff relied on comments of the defamation list judge about some of the prior non-compliances being attributable to both parties. The plaintiff also contends that the proceedings were further delayed by the impacts of the COVID-19 pandemic. 4. The plaintiff intends to take action to reinstate the proceedings but has not yet done so. The plaintiff suffered ill health in mid 2022 causing him to be unable to attend to the preparation of the proceedings. Since about that time he has been unable to find legal representation and has not been able to secure any further pro bono assistance. 5. The plaintiff submits that the gross sum costs order claimed is many multiples of the estimates set out in the relevant Costs Agreements and that there is no evidence that the defendant has actually paid the amount sought. The plaintiff points to the trust account transactions that indicate that only "a fraction" of the amount claimed has actually been paid. The plaintiff asserts that the gross sum of $320,000 is a significant figure for a hearing that did not proceed. Consideration 1. The plaintiff's assertions that he was defamed by the defendant through the relevant publications cannot be accepted. There has been no hearing of the merits of the case. The Defence does not make the admissions alleged by the plaintiff. 2. The plaintiff's contentions relating to the default of both parties in preparation of the proceedings are selective. There are ample other examples of delays caused in the proceedings that were the responsibility of the plaintiff. In particular the plaintiff took a selective active part in the proceedings in the period leading up to when the matter was listed for hearing. The plaintiff was aware that the matter was listed for hearing and must have known that the defendant was actively preparing the case so that it could be determined at the time that the Court had set aside for the hearing. Whilst I accept that the plaintiff was affected by ill health and also unable to obtain legal representation, he took no steps to inform the Court of those difficulties. In those circumstances it was appropriate for the defendant to continue to prepare the case to have it determined at the time set aside by the Court to do so. 3. I accept that the impacts of the COVID-19 pandemic also caused some delay in the case. No blame can be attributed to the plaintiff or the defendant for those delays. However, there were considerable instances of non-compliance by the plaintiff because he was either ill or could not understand what was required of him because he was self-represented. 4. The plaintiff became aware of the dismissal of the proceedings and the costs orders made against him after the defendant made an application for a gross sum costs order. The plaintiff indicated to the Court at a mention of the application, when he appeared by telephone, and in his written submissions, that he intended to take steps to set aside the judgment entered in his absence. A considerable period of time has elapsed since the plaintiff found out that the proceedings were dismissed and when he made those representations to the Court. The plaintiff still has not taken any action to deal with this prior default. In those circumstances I am satisfied that continuation of these proceedings is likely to be unnecessarily protracted by reference to the plaintiff's lack of legal representation and his prior dilatory conduct. 5. It is not appropriate to reduce the gross sum on the basis that the defendant has not paid the fees rendered. I am satisfied on the costs agreements that the defendant has a liability to pay those costs, and that is that that is required. Further, it is not appropriate to reduce the gross sum based on the estimates provided in the costs agreements. Those figures were just that, estimates, and provided at times when the precise course of the litigation could not be fully appreciated. 6. I have carefully reviewed the defendant's evidence. I am satisfied that the costs sought are fair and logical and can be justified by reference to the circumstances of the litigation. I am satisfied by reference to that evidence that I should make the gross sum costs order in the sum of $300,000 sought by the defendant. I have applied a modest discount to the amount sought by the defendant to provide for the contingencies of the assessment of costs. 7. I have had regard to the plaintiff's capacity to pay, based on the limited information that I have. Accepting that the plaintiff has been ill and has lost his prior source of livelihood as a commercial airline pilot, he may well have some considerable difficulty in meeting any costs order. However, I have already made an order that the plaintiff is to pay the defendant's costs of the proceedings on an indemnity basis for the reasons outlined. The question to be determined in this application is whether it is in the interests of justice to require the quantification of those costs to be determined by a costs assessor or for the Court to determine that issue. It would not be appropriate in this application for me to revisit my earlier costs order. In all the circumstances, I am satisfied that the making of the gross sum costs order sought is a just, quick and cheap way of determining the issue. I am satisfied that referring the quantification of the costs order to a costs assessor would result in more delay and increased costs. ORDERS 1. The plaintiff is to pay the defendant's costs of the proceedings on an indemnity basis assessed at $300,000. ********** 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: 23 May 2023