Supreme Court New South Wales Medium Neutral Citation: Tanious v Australian Medical Council Limited and ; Australian Health Practitioner Regulation Agency (No 2) [2015] NSWSC 456 Hearing dates: 22 April 2015 Date of orders: 22 April 2015 Decision date: 22 April 2015 Jurisdiction: Common Law Before: Bellew J Decision: The plaintiff is to pay the costs of the proceedings of the first defendant, as agreed or assessed. The plaintiff is to pay the costs of the proceedings of the second defendant on an indemnity basis. Catchwords: COSTS – Where proceedings dismissed – Where defendant had written to plaintiff pointing out the shortcomings in his case and had invited him to discontinue the proceedings with no orders as to costs – Where plaintiff continued proceedings – Indemnity costs awarded in favour of second defendant Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Birch v National Australia Bank Ltd (No 6) [2014] NSWSC 1111 Colgate Palmolive v Cussons Pty Limited [1993] 46 FCR 225 Fountain Meat (Sales) Pty Limited v International Produce Merchants Pty Limited and Anor (1988) 81 ALR 397 Malouf v Malouf (2006) 65 NSWLR 449 Tanious v Australian Medical Council Limited and Australian Health Practitioner Regulation Agency [2015] NSWSC 447 Tanious v Dedousis (No 2) [2014] NSWSC 1361 Tanious v Hunt [2012] NSWCA 51 Category: Costs Parties: Mofeed Louis Tanious – Plaintiff Australian Medical Council Limited – First Defendant Australian Health Practitioner Regulation Agency – Second Defendant Representation: Counsel: Plaintiff – In person Mr N J Topfer (Solicitor) – First Defendant Ms E Raper – Second Defendant Solicitors: Plaintiff - In person Mr N J Topfer – First defendant Mr J McDonnell, Acting Crown Solicitor for NSW – Second defendant File Number(s): 2014/333951 Publication restriction: Nil Judgment – ex tempore (revised) 1. In this matter I determined that the proceedings brought by the plaintiff against both the first and second defendants should be dismissed: Tanious v Australian Medical Council Limited and Australian Health Practitioner Regulation Agency [2015] NSWSC 447. 2. As I indicated at [37] of my judgment, the solicitor for the first defendant submitted at the conclusion of the hearing that from his client's point of view costs should simply follow the event. In doing so, he indicated to me that he did not seek any special costs order(s) in the event that his notice of motion was successful, and simply sought an order that the plaintiff pay the first defendant's costs as agreed or assessed. 3. Ms Raper of counsel, who appeared for the second defendant, asked that she be given the opportunity to be heard on the question of costs when judgment was delivered. Upon the publication of my reasons earlier this morning Ms Raper sought an order that the plaintiff pay the costs of the second defendant on an indemnity basis. Ms Raper's application is made on two grounds. 4. The first is that the plaintiff commenced and maintained proceedings which he should have known had no real prospect of success: Fountain Selected Meat (Sales) Pty Limited v International Produce Merchants Pty Limited and Anor (1988) 81 ALR 397 at 401; Colgate Palmolive v Cussons Pty Limited [1993] 46 FCR 225 at 233. The second is that the plaintiff rejected an offer of compromise. 5. In support of her application, Ms Raper tendered two letters which were forwarded to the plaintiff by the New South Wales Crown Solicitor who acts for the second defendant. Whilst I do not propose to recite the entirety of that correspondence, it is appropriate that I make reference to parts of it. 6. On 15 December 2014 the Crown Solicitor wrote to the plaintiff raising a number of issues arising from the summons which had been filed commencing the proceedings. Amongst the issues raised was the fact that the second defendant had no involvement in the clinical assessment about which the plaintiff was aggrieved, and which lay at the heart of the proceedings that he had commenced. It is of some significance that at [35] of my reasons I concluded that the absence of such involvement on the part of the second defendant, and the fact that the second defendant had made no relevant decision, were fundamental shortcomings in the plaintiff's case. 7. At the conclusion of the correspondence of 15 December 2014 the Crown Solicitor asserted that the summons did not disclose any reasonable cause of action against the second defendant. The plaintiff was invited at that point to discontinue the proceedings. The letter stated that the second defendant was prepared to bear its own costs if the proceedings were discontinued on or before 29 January 2015. It was also pointed out to the plaintiff that in the event that he chose to pursue the matter, the second defendant would file a notice of motion seeking that the proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). Finally, it was made clear that in that event, the second defendant would seek an order that the plaintiff pay its costs on an indemnity basis and would tender a copy of the correspondence in support of any such application. 8. On 5 February 2015 the Crown Solicitor wrote to the plaintiff again. It was noted that notwithstanding the matters previously raised, no amended summons had been filed. The Crown Solicitor repeated the general content of his letter of 15 December 2015. Once again, the plaintiff was put on notice that the second defendant proposed to file a notice of motion seeking to have the proceedings dismissed on the basis that they failed to disclose a reasonable cause of action. The plaintiff was again reminded that in that event, an order would be sought that he pay the second defendant's costs of those proceedings. 9. It was not specifically stated in that letter that the order sought would be that costs be paid on an indemnity basis. However there was a clear reference to the earlier correspondence of 15 December 2014. The plaintiff must have understood the second defendant's position. The letter concluded by inviting the plaintiff to discontinue the proceedings before a directions hearing which was listed before the Registrar on 12 February 2015. 10. The second defendant relied on the contents of each of these letters in support of the application which is now made. In particular, counsel for the second defendant submitted that the plaintiff was informed in writing of the deficiencies in the summons, and the basis on which the proceedings against the second defendant could not be maintained. Counsel relied on the fact that in the letter of 15 December 2014 it was made clear to the plaintiff that in the event that he did not discontinue the proceedings a motion seeking to dismiss them would be filed. Counsel also relied on the fact that it was made clear to the plaintiff that in the event that he chose to continue the proceedings (the various deficiencies in proceedings having been brought to his attention) an application for indemnity costs would be made in the event that they were dismissed. 11. It was submitted on behalf of the second defendant that in all of those circumstances an order for indemnity costs was appropriate. It was specifically submitted that the Court should not be reluctant to award costs on an indemnity basis by reason of the fact that the plaintiff is unrepresented: Malouf v Malouf (2006) 65 NSWLR 449 at [452] cited by Adamson J in Birch v National Australia Bank Ltd (No 6) [2014] NSWSC 1111 at [7]-[13] inclusive. 12. It was also submitted that the plaintiff has some understanding of the processes of the court. In this regard, it was pointed out that the plaintiff had previously been the subject of costs orders: Tanious v Hunt [2012] NSWCA 51; Tanious v Dedousis (No 2) [2014] NSWSC 1361. 13. The plaintiff, who has again appeared before me unrepresented, was given the opportunity to address me in relation to the application made on behalf of the second defendant. The transcript will reflect that in giving the plaintiff that opportunity I endeavoured, insofar as I was able to do so, to explain the nature of the application which was being made, and in particular, the nature of an order for indemnity costs. 14. The plaintiff submitted that he proposed to lodge an appeal against the decision that I had made dismissing the proceedings. He also pointed out that he was defending himself and was in receipt of Centrelink payments. He submitted that in those circumstances, an order for costs against him would cause considerable hardship. 15. In my view, there is no reason why the second defendant ought not have an order for costs made in its favour. The only issue is the basis upon which that order ought be made. Whether the order sought by the second defendant is appropriate is a matter for the exercise of my discretion. 16. It is clear on the evidence before me that the plaintiff was put on notice, on more than one occasion, of various shortcomings and deficiencies in the proceedings which he had instituted. It was made plain to the plaintiff, as long ago as December 2014, that if he chose to pursue the proceedings and was not successful, an application for indemnity costs would be made. 17. Those matters were repeated, albeit in a shorter form, in the correspondence of 5 February 2015. In the face of correspondence which was clear and unequivocal in its terms, the plaintiff chose to proceed. It is of some significance that the basis on which I concluded that the proceedings ought be dismissed against the second defendant was amongst the matters which were raised in the Crown Solicitor's letter of 15 December 2014. 18. I am satisfied that although the plaintiff has been unrepresented he is not completely unfamiliar with the processes of the court. I am satisfied, in particular, that he is not completely unfamiliar with the nature of costs orders and, at least in broad terms, the circumstances in which costs orders can be made. 19. It is obviously open to the plaintiff to lodge an appeal against the decision that I have made. That is not a matter which bears upon in any relevant way the exercise of my discretion as to costs. None of the other matters raised by the plaintiff are relevant to the exercise of that discretion. 20. Put simply, the plaintiff was on notice that if he chose to proceed with the matter but was unsuccessful, an order for indemnity costs would be sought. Of even greater significance is the fact that when being placed on notice it was made clear to the plaintiff that the second defendant would bear its own costs in the event that he chose to discontinue the proceedings at that time. In circumstances where he did not do so, and in all of the circumstances to which I have referred, I am satisfied that the order which is sought by the second defendant is appropriate in the exercise of my discretion. 21. Accordingly, I make the following orders. 1. The plaintiff is to pay the costs of the proceedings of the first defendant as agreed or assessed. 2. The plaintiff is to pay the costs of the proceedings of the second defendant on an indemnity basis. ********** 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: 24 April 2015