Supreme Court New South Wales Medium Neutral Citation: Massarani v Roads and Traffic Authority of NSW [2011] NSWSC 1520 Hearing dates: 2 & 7 December 2011 Decision date: 15 December 2011 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave to the Plaintiff to discontinue the proceedings. Any Notice of Discontinuance is to be filed within 7days. 2. Order that the Plaintiff pay the Defendant's costs as agreed or assessed capped in the sum of $5000. If the Notice of Discontinuance is not filed within 7 days the cap is removed. Catchwords: PROCEDURE - discontinuance - leave to discontinue - costs on discontinuance - whether Defendant acted unreasonably - whether Plaintiff demonstrated reason to depart from r 42.19. Legislation Cited: Civil Procedure Act 2005 Crimes (Appeal and Review) Act 2001 High Court Rules Migration Act 1958 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497 Markisic v Commonwealth of Australia [2010] NSWSC 24 Markisic v Commonwealth of Australia [2010] NSWCA 273 Markisic v Department of Community Services NSW [2006] NSWCA 106 Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 143 ALR 1 Category: Principal judgment Parties: Patrick Heydar Massarani (Plaintiff) Roads and Traffic Authority of NSW (Defendant) Representation: In person (Plaintiff) Hunt & Hunt (Defendant) File Number(s): 2011/348803 Judgment 1On 4 October 2010 the Plaintiff received an infringement for not displaying his P plates on his car. At some time close to that infringement he also received an infringement for not wearing a seat belt. 2That resulted on 16 December 2010 in a notice from the RTA suspending his driver's licence for a period of 3 months. The Plaintiff appealed against this decision to the Local Court. The appeal was fixed for hearing at the Local Court on 7 February 2011. 3On 17 January 2011 the Plaintiff was apparently at the Local Court in the Downing Centre as a member of the public. Without any notice to the RTA he requested that the presiding Magistrate alter the date fixed for his appeal. The Magistrate acceded to this request notwithstanding that the RTA had no notice of it. The matter was thereafter re-listed for hearing on 31 January 2011. 4The Plaintiff says that he subsequently checked the lists to see if the matter had been removed from the List on 7 February 2011. Because he ascertained that it had not been so removed he did not attend Court on 31 January 2011 although that was the date on which he had asked for the matter to be re-listed. He attended Court on 7 February 2011 and ascertained that the matter had been dealt with on 31 January 2011. It had been dismissed because there had been no appearance by him. The Plaintiff acknowledges that he did not check the List for 31 January 2011. 5On 9 February 2011 the Plaintiff filed a Notice of Appeal to the District Court. He also made an ex parte oral application for a stay on the suspension of the licence under s 16A(2) Crimes (Appeal and Review) Act 2001. This was granted by his Honour Judge Blackmore in these terms: The Appellant appeals a refusal to annul his conviction in the Local Court. The suspension of his licence has not been stayed. The Appellant therefore asks that a stay be entered on that suspension until his appeal is held in the District Court. Ordered: Stay entered under s 16A(2) Crimes (Appeal and Review) Act of the suspension of the Appellant's licence until the hearing of his appeal to the District Court. 6On 14 July 2011 the Plaintiff's appeal was listed for hearing before the District Court but the Plaintiff did not appear. The matter was then adjourned to 18 August 2011. 7Apparently judgment was given on 1 November 2011 when the District Court found that it had no jurisdiction to entertain the Plaintiff's appeal. The result of its having no jurisdiction was that the stay order made by Judge Blackmore was also made without jurisdiction. 8The District Court's judgment seems to have prompted the filing by the Plaintiff of the Summons in this Court. The relief claimed was as follows: 1. That the orders of Magistrate [indecipherable] entered on 31 January be set aside, or 2. The RTA be ordered to reinstate the license of the applicant immediately. 9The basis for the relief was not set out. It is unclear whether the application was made under s 52 Crimes (Appeal and Review) Act 2001 or whether prerogative relief was being sought in respect of the Magistrate's order. 10The Summons was apparently filed pursuant to an order given by Hidden J as Duty Judge on that day. It appears that the application was made ex parte. His Honour made an order staying the suspension of the Plaintiff's licence until 4pm 7 November 2011, and directed that the Summons be returnable before the Registrar on that day. 11When the matter came before the Registrar on 7 November 2011 in accordance with Hidden J's order there was no appearance from any party. The Registrar stood the matter over to 21 November 2011. 12On 8 November 2011 the Plaintiff appears to have approached James J as the Duty Judge. It appears the application was made ex parte. Whether the RTA was ever notified is not clear. James J revoked the orders made by Hidden J on 1 November apart from the order that the Summons and supporting affidavit be filed by 1 November 2011. He ordered that the Summons be returnable at 9:00am on 18 November 2011 and that the Summons and supporting affidavit be served on the RTA by 5:00pm on 11 November 2011. He made an order staying suspension of the Plaintiff's licence until 4pm on 18 November 2011. 13The matter came before the Registrar again on 18 November. The Registrar ordered that the Plaintiff file and serve any affidavit in support of the Summons dated 25 November, stood the matter over to 2 December for Directions before the Registrar, and referred the matter to the Duty Judge on 18 November. The matter then came before Hislop J who stayed the suspension of the Plaintiff's licence until 4pm on 2 December 2011. 14The matter was sent to me as Duty Judge by the Registrar on 2 December 2011. 15The Plaintiff, who was not legally represented but is apparently a law student, announced that the matter for determination was how the proceedings should be brought to an end. He wished to discontinue the proceedings and seek an order for costs whereas, he said, the Defendant wanted the proceedings dismissed with an order for costs in its favour. He said that things had changed in the matter because the Defendant had changed its position. That was said to have occurred by the contents of a letter the Defendant's solicitors wrote to him on 1 December 2011 as follows: Roads and Maritime Services considers that the "stay" purported to have been ordered by his Honour Judge Blackmore on 9 February 2011 had no effect. Accordingly, there is no utility in these proceedings as the period of suspension has already expired. I am instructed to apply to have these proceedings dismissed. 16The earlier position of the Defendant (as asserted by the Plaintiff) is said to be in a letter from the Defendant's solicitors as follows: On 10 February 2011 you obtained an order from the District Court in the following terms: "Stay entered under s16A(2) of the Crimes (Appeal and Review) Act of the suspension of the appellant's licence until the hearing of his appeal to the District Court'. The Authority was not notified of your application for a stay, and the order was made in its absence. On 10 February 2011 I issued a letter to you advising that as a result of the Local Court order on 31 January 2011, your drivers licence was suspended for a period of 3 months commencing on 31 January 2011. That position was taken on the basis that there was no automatic stay as a result of your appeal to the District Court. At the time of issuing the letter I was unaware that you had approached the District Court on 10 February 2011 without notice to the prosecutor. The Authority was first notified of the District Court's order at the call over of this matter on 31 March 2011. On that date the Authority's representative indicated that the Authority proposed to argue that the Local and District Court do not have jurisdiction to hear an annulment application in relation to an appeal under s 18 of the Road Transport (General) Regulation . She also indicated `that, if the District Court is without jurisdiction, the order staying the suspension may have also been made without jurisdiction. Ultimately the legal status of the District Court's order on 10 February 2011 depends upon the outcome of the jurisdictional point, which will be determined at the hearing of your District Court appeal. You have requested that I advise you whether the Authority maintains its position that the suspension of your licence took effect on 31 January 2011 and is currently in force. I am instructed that the Authority accepts that the stay has effect pending the determination of the jurisdictional argument at the hearing of your District Court appeal. Accordingly the Authority accepts that your drivers licence is not currently suspended and has not been since the District Court's order on 10 February 2011. The Authority's records have been corrected to reflect this position. ( emphasis added ) 17Although the issue in substance was said to be one of the costs of the proceedings, during the hearing the Plaintiff raised the possibility of seeking pro bono representation so he could decide if he wanted to pursue the proceedings. The utility of that was said to be that, if he was able to wipe the suspension from his licence, he would obtain a full licence 3 months earlier than is currently the case, and he said that might make a difference to future employment. 18Subsequently the Plaintiff asked me to adjourn the proceedings because he was not feeling well. He also wanted to think about what he would do with the proceedings. Accordingly I adjourned the proceedings to 7 December 2011. 19When the matter came back before me on 7 December 2011, although the Plaintiff at first indicated he wished to press on with the Summons, he ultimately said that he wished to discontinue but he did not want to pay the Defendant's costs. 20The Plaintiff submitted that he commenced the proceedings and continued with them up to the present time because the Defendant led him to believe that there was a stay in place on the suspension of his licence. He pointed particularly to the letter of 18 April. He submitted that the RTA also misled him about whether there was a stay because of the attitude the Defendant took to the stay both before and after the time of the commencement of the proceedings. 21What appears to be clear is that, until the decision of the District Court on 1 November 2011 determining that it did not have jurisdiction to entertain the Plaintiff's appeal, both sides thought that it had jurisdiction with the result that the stay of the suspension ordered by Judge Blackmore was in force. In those circumstances it cannot be said that the Defendant misled the Plaintiff about the validity or otherwise of the stay. The letter of 18 April said: Ultimately the legal status of the District Court's order on 10 February 2011 depends upon the outcome of the jurisdictional point, which will be determined at the hearing of your District Court appeal. 22As soon as the Plaintiff filed the present proceedings he sought a stay on the basis that the stay given by Judge Blackmore was no longer in force. Although the Plaintiff submitted that the Defendant opposed the stays he sought, thereby suggesting some how that a stay was necessary, the fact is that the application for a stay was made ex parte by the Plaintiff to Hidden J and subsequently to James J. Those applications and the ex parte approach to them continued the approach the Plaintiff has adopted from the outset of simply seeking orders from various judicial officers without giving any notice to the other party that might be affected. 23As far as can be gleaned from the Court's records, the only time a stay was put into place with any representative of the Defendant being present was before Hislop J on 18 November. There is no evidence whether or not the stay was opposed or consented to by the Defendant except the assertion of the Plaintiff that the Defendant opposed the stays he sought. 24I do not think it can be concluded from the fact that the Defendant might have opposed the stay on 18 November (assuming that is so) that the Defendant misled the Plaintiff in any way about whether the suspension had or had not run its course by that time, as a result of the District Court having no jurisdiction to hear the appeal. If the Defendant was mistaken about that so too was the Plaintiff who brought the proceedings in this Court and who sought stays all along the line. 25Part 42:19 UCPR provides: 42.19 Proceedings discontinued (1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1. (2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued. ... 26The Plaintiff submitted that the Defendant had acted unreasonably and caused unnecessary costs to be incurred by the attitude it adopted to the stay. 27The Plaintiff drew attention to the judgment of McHugh J in Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin (1997) 143 ALR 1. However, that case concerned the application of a particular High Court Rule, O 71.R 39 which provides: When for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just. 28Other considerations apply where that Rule governs the position. In the present case, for example, there is no evidence that the further prosecution of the proceedings is unnecessary. The position in the present case is simply that the Plaintiff has elected not to pursue the proceedings. The position is no different from when he commenced them, in that the suspension of his licence for the 3 month period has run its course. He could, if he wished, still seek to overturn the Magistrate's decision in the hope that he could persuade that Magistrate or another Magistrate to waive the suspension of his licence. Indeed that is the position he contemplated on the first day of the hearing before me. 29Moreover, in the other decision referred to by the Plaintiff, Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Basten JA specifically referred to cases where challenges are made to decisions under the Migration Act 1958 (Cth) as being in a particular category of discontinuance, and also noted that the decision in Ex Parte Lai Qin was dealing with a High Court Rule that conferred an open discretion. 30The Plaintiff submitted that what was said by the Court of Appeal in Bitannia , and particularly in the judgment of Basten J, provided supported for his position. I do not agree that that is so. 31Although all of the Judges reaffirmed what had been said in Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497 that UCPR 42.19 does not give rise to a presumption that costs will be ordered against the discontinuing party, that is not the end of the consideration. Hodgson JA (with whom Tobias JA agreed) said: [54] However, like UCPR 42.20, UCPR 42.19 states what the order for costs is to be unless there is a discretionary decision to order otherwise: Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365 at [53]. This means there is an onus on the discontinuing party to make an application in respect of costs if it does not propose to pay the costs of the other parties: Foukkare at [65]. In my opinion, it also means that there must be "some sound positive ground or good reason for departing from the ordinary course": Australiawide Airlines at [54]. ... [56] In my opinion, it is not appropriate to make a separate determination of costs to which either Parkline or the applicants would be entitled if Parkline were not discontinuing, and then to consider if that should be changed because Parkline is discontinuing. Discontinuance both precludes full consideration of matters that could be relevant to previously undecided costs, and also provides a framework in which all undecided costs questions should be considered. [57] As mentioned earlier, there should not be a finding that Parkline acted reasonably in commencing proceedings: that was a question that could not be determined until the final hearing, which is precluded by the discontinuance. ... 32Basten JA said: [71] A significant fact underlying each notice of discontinuance will be that the party which commenced the proceedings has abandoned them, though without prejudice to its entitlement, such as it may be, to claim the same relief in fresh proceedings: r 12.3. ... [74] However, it is less clear what was intended in Fordyce by stating that the default order [R 42.19] constituted a material consideration in exercise of the discretion to otherwise order. No doubt it is true to say that the default order is relevant in the sense that it identifies that from which the court is invited to depart. Beyond that, the existence of the default consequence is not itself helpful in deciding whether to depart from it. Rather, it is the underlying reason for the default position with respect to costs that may bear upon the exercise of the discretion. A party which seeks to discontinue must generally, in a relevant sense with respect to costs, be treated as an unsuccessful party. The general costs rule set out in s 98 of the Civil Procedure Act 2005 (NSW) does not identify the limits of the court's discretion with respect to costs. The most important limitation for present purposes is the requirement that, again subject to the court otherwise ordering, costs should follow the event: see r 42.1. If that rule were to be applied, absent persuasion that the court should otherwise order, the plaintiff would be required to pay the costs of discontinuance. It seems likely that it is consistency with that general principle which underlies the default consequence provided in r 42.19. If that rule has application with respect to a discontinuance (and no reason was proffered as to why it should not) the discretion to make a costs order under r 42.19 will be confined by that general principle. In that respect, it may be misleading to describe the discretion under r 42.19 as "unconfined": see Fordyce at [87]. In some cases (though not necessarily all) discontinuance will involve the termination of proceedings without the court knowing what the result would have been had they been determined on the merits. In one sense, the existence of a hearing on the merits may be largely irrelevant, just as the actual result of a hearing on the merits will not be affected by the fact that the proceedings might have been run differently and might then have achieved a different result. ... [79] In some circumstances it may be argued that a discontinuance does not involve a surrender or abandonment by the plaintiff, but recognition that "some supervening event" has militated against success, rendered the proceedings futile, or wholly removed the plaintiff's cause of action: see One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; 101 FCR 548 at 553 (Burchett J); Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 at [5] (Davies AJA, Mason P and Meagher JA agreeing); Australiawide Airlines at [50]-[52] (Bryson JA, McColl JA agreeing). 33In my opinion the Plaintiff has not demonstrated some positive ground or good reason for departing from the ordinary course. Nor has some supervening event brought about the discontinuance. Nothing has changed since the District Court determined on 1 November that it did not have jurisdiction. Thereafter the Plaintiff embarked on the course he did and has now decided to abandon it. To the extent that the Defendant was notified of the Plaintiff's applications from 1 November 2011 onwards, even if it opposed them on one such occasion, it cannot be said to have been unreasonable in doing so, particularly in the face of a Summons in the form it was and without any affidavit in support of the Summons at the time it may have taken that course. 34In Bitannia at [68] Basten JA set out the 2 alternative ways a plaintiff could succeed if it wished to discontinue and seek an order for costs other than is provided in UCPR 42.19. The Plaintiff has followed neither of these courses but I have taken his oral application to be analogous to a desire to discontinue and to seek a different costs order. 35Under s 98 Civil Procedure Act 2005 the Court has the power to specify a gross sum instead of assessed costs or to specify a proportion of the assessed costs as does not exceed a specific amount. The Court of Appeal in Markisic v Department of Community Services NSW [2006] NSWCA 106 adopted that approach, taking into account that the Plaintiffs were impecunious in assessing the appropriate figure. That was a course I also adopted in Markisic v Commonwealth of Australia [2010] NSWSC 24 (upheld by the Court of Appeal in Markisic v Commonwealth of Australia [2010] NSWCA 273), and by 2 other judges in that case. 36When I enquired of Ms Tiedt for the Defendant what the Defendant's costs of the proceedings were she informed me that they were in the vicinity of $8000 to $8,500. Bearing in mind that a number of the applications made by the Plaintiff have, as I have said, been made ex parte since the proceedings commenced on 1 November 2011, that seems a large amount. 37In my opinion justice is best served in the matter by ordering that the Plaintiff pay the Defendant's costs of the proceedings as agreed or assessed but capped as s 98(4)(d) allows. In assessing that cap I take into account that it seems the Defendant has appeared on 3 occasions by its solicitors, being 18 November before the Registrar and Hislop J, before the Registrar and me on 3 December 2011, and before me on 7 December 2011. I note that the Plaintiff has served only one short affidavit and the Defendant has prepared one affidavit which has exhibited a number of documents including transcripts for which fees would have to have been paid. The Defendant's solicitors wrote the letter of 1 December (above) and can be assumed to have advised their client from the time they were first notified of the Plaintiff's Summons. It does not appear that the Defendant has briefed counsel. In my opinion, an appropriate cap is $5,000. 38The Plaintiff must, however, act promptly to bring these proceedings to an end. Any delays are likely to increase the actual costs of the Defendant, and when the Defendant's costs are capped that would be unfair to it. For that reason I will make provision for the Plaintiff to act expeditiously or the cap will not remain. 39The orders I make therefore are these: 1.Leave to the Plaintiff to discontinue the proceedings. Any Notice of Discontinuance is to be filed within 7 days. 2. Order that the Plaintiff pay the Defendant's costs as agreed or assessed capped in the sum of $5000. If the Notice of Discontinuance is not filed within 7 days the cap is removed. ********** 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: 15 December 2011