Supreme Court New South Wales Medium Neutral Citation: Mills v State of New South Wales (No 2) [2016] NSWSC 1741 Hearing dates: 22 November 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Common Law Before: Schmidt J Decision: An order that Mr Mills to pay the Attorney's costs in the amount of $11,562.66. Catchwords: PROCEDURE – notice of motion – gross costs order sought – order made – Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 1307 Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 Ghosh v Miller (No 4) [2016] NSWSC 1710 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Harrison & Anor v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 John Perras & Ors [2011] NSWSC 581 Mills v Perras [2005] NSWSC 1184 Mills v State of New South Wales [2016] NSWSC 1547 Stankovic v State of NSW (No 2) [2016] NSWSC 335 Category: Costs Parties: Mervyn Thomas aka (Tom) Mills (Plaintiff) State of New South Wales (Defendant) Representation: Solicitors: Mr M Mills, unrepresented (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2016/142225 Publication restriction: None Judgment 1. In Mills v State of New South Wales [2016] NSWSC 1547, I ordered that the proceedings be dismissed, being satisfied that Mr Mills' statement of claim disclosed no reasonable cause of action. Those were orders sought by the State, pursuant to a motion filed in November 2016, which Mr Mills opposed. His claim was for damages of $300,000,000.00 for alleged breach of contract and negligence on the part of a Local Court Magistrate, who had dismissed a private criminal prosecution Mr Mills had brought against a neighbour. 2. The State now seeks a gross costs order. Its case is that it is just and fair that the Court exercise its power to make an order for gross costs, given that Mr Mills has sought to re-agitate matters which had been decided adversely against him in Mills v Perras [2005] NSWSC 1184, where he was represented by counsel, and in Mills v John Perras & Ors [2011] NSWSC 581, where he was unrepresented. 3. In the result, the State had applied expeditiously to have these proceedings dismissed, thereby keeping costs to a minimum. The 10% discount proposed was submitted to have been fair and reasonable in the circumstances, and analogous to the discount adopted in Attorney General in and for the State of NSW v Bar-Mordecai [2013] NSWSC 1307. There, a gross costs order was made in circumstances where it was found that assessment of the costs would be a time consuming and expensive exercise, for which Mr Bar-Mordecai would ultimately be responsible, but unable to pay. 4. I there concluded at [7], that making the usual order as to costs would not adhere to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just, quick and cheap resolution of the real issues in the proceedings, or comply with the requirements of s 60, which requires that the practice and procedure of the Court be implemented in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. 5. Mr Mills, who is unrepresented, has filed a written submission where, amongst other things, he states that he is not prepared to accept the Court's decision, that he will not agree to any costs order, nor will he seek assessment of any costs order. 6. In his submission Mr Mills also objects to the dismissal of his proceedings; complains that when the hearing opened I enquired of the State's counsel what was in issue; that it was, however, a matter for him to identify the issue, not the State; that the real issue was his claims, which had not been dealt with; that the approach adopted had involved relevant error, which had wrongly resulted in the dismissal of the proceedings, without his issues being determined; and that the approach adopted indicated that I had been biased against him. 7. Mr Mills' submissions reveal his misunderstanding of what arose to be decided, when the matter came before me for hearing. It was not his statement of claim which was listed for hearing, but the State's notice of motion, by which orders that the proceedings be dismissed under the Uniform Civil Procedure Rules 2005 (NSW) were sought. That was what was in issue that day and what Mr Mills opposed, by the submissions which he advanced. That application having succeeded as it did, the proceedings have been dismissed, with the result that his statement of claim and the claims which he there made have not been heard or determined. 8. The usual order as to costs under the Uniform Civil Procedure Rules, in those circumstances, is an order that Mr Mills pay the State's costs, as agreed or assessed, but the Court has power under s 98 of the Civil Procedure Act, to make a gross costs order, as the State seeks, in an appropriate case. 9. The State's application was supported by an affidavit sworn by Mr Cantrill, a solicitor of some 28 years' experience, employed in the Crown Solicitor's office, who has had conduct of the proceedings. He deposed to the procedural history of the matter; the costs incurred; the rates charged; the basis of his estimate that total costs of some $6,900.20, exclusive of GST have been incurred; counsel's rates and fees of some $2,025.00 which have been incurred; as well as an estimate of costs involved in pursuit of the gross costs application. Total costs identified amounted to $12,847.40. 10. Mr Cantrill deposed to the basis of his belief that on assessment, some 90% of these costs would be recovered, resulting in a total costs assessment of $11,562.66. Mr Cantrill was not aware of Mr Mills having any assets that could be used to pay such costs. He also deposed to the results of internet searches undertaken to ascertain whether Mr Mills holds any real property. No records indicating that he did were found. 11. As I recently explained in Ghosh v Miller (No 4) [2016] NSWSC 1710 at [12], the purpose of the power granted by s 98(4)(c) Civil Procedure Act is to award a specified gross sum instead of assessed costs, in order to avoid the expense, delay and aggravation which may arise out of the assessment process. Such orders will be made where assessment will disadvantage the successful party; where the unsuccessful party's conduct has unnecessarily contributed to the costs of the proceedings; and where further assessment is likely to be unduly protracted and add to costs unnecessarily. 12. Mr Cantrill's evidence has not been challenged. It must be accepted as reflecting a logical, fair and reasonable estimation of the costs which the State has incurred. 13. This, I accept, is a similar situation to that which arose for determination in Attorney General in and for the State of NSW v Bar-Mordecai. Mr Mills opposes any costs order, but has not submitted that he has the means to pay any order made in favour of the State, if costs were to be assessed, which he opposes, nor has he submitted that any of the costs identified by Mr Cantrill were unnecessarily incurred, or charged at an unreasonable rate. 14. The final question to be resolved is the discount which should be applied. They must be assessed in the broad brush way discussed in Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at [50], taking into account the contingencies relevant on a costs assessment. The State submitted that in this case a 10% discount would be applied, unlike the 20% discount applied by Davies J in Stankovic v State of NSW (No 2) [2016] NSWSC 335, which was submitted to be a similar case. 15. There, Mr Stankovic's proceedings had also been dismissed, and Mr Cantrill had given affidavit evidence that more costs than were incurred in these proceedings, had been incurred. That reflected no doubt Mr Stankovic's approach to the litigation. 16. Davies J referred to Giles JA's observations in Harrison & Anor v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [21] - [22], that the power to make a gross costs order must be exercised fairly between the parties, when the Court has sufficient confidence in arriving at an appropriate sum on the materials available. He also referred to observations in Hamod v State of New South Wales and Anor [2011] NSWCA 375 (at [813] – [820]), to the effect that the conclusion reached must rest on an informed assessment of actual costs, which must be logical, fair and reasonable, with an impressionistic discount of costs actually incurred or estimated, to take into account the of a formal costs assessment. After referring to authorities where the discount ranged from 10% to 30%, his Honour concluded that the discount should be 20%. 17. Each case must turn on its own facts. In this case, I am satisfied that the fair and just result of the application of the broad brush approach to the unchallenged evidence of Mr Cantrill, as to the costs incurred in what must be accepted has been an efficient approach on the part of the Attorney, to the resolution of the proceedings which Mr Mills brought, is to make the gross costs order sought. The proceedings were initiated despite the earlier decisions to which I have referred, which bound him. The dismissal application was made promptly and pursued expeditiously. In the result I consider that must all lead to the conclusion that the costs incurred should be reduced by the 10% proposed by the Attorney, in order to do justice between the parties. Order 1. For the reasons given, I order Mr Mills to pay the Attorney's costs in the amount of $11,562.66. ********** 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: 09 December 2016