Supreme Court New South Wales Medium Neutral Citation: Walker v Government Service of New South Wales State Transit Authority Division [2018] NSWSC 30 Hearing dates: On the papers Date of orders: 01 February 2018 Decision date: 01 February 2018 Jurisdiction: Common Law Before: Harrison J Decision: The plaintiff to pay the defendants' costs in a specified gross sum of $18,500. Catchwords: COSTS – party/party – bases of quantification – ordinary basis – indemnity basis – specified gross sum cost orders – offers of compromise/Calderbank offers – where plaintiff did not accept genuine offer Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4) Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375 Category: Costs Parties: Craig Walker (Plaintiff) Government Service of New South Wales State Transit Authority (First Defendant) Roads and Maritime Services (Second Defendant) Independent Commission Against Corruption (Third Defendant) Department of Premier and Cabinet (Fourth Defendant) Representation: Counsel: E Graham (Defendant) Solicitors: Lea Armstrong, Crown Solicitor (Defendant) File Number(s): 2016/367380 Publication restriction: Nil Judgment 1. HIS HONOUR: I published my reasons for judgment in the principal dispute on 14 November 2017: see Walker v Government Service of New South Wales State Transit Authority Division [2017] NSWSC 1528. I dismissed the proceedings and ordered Mr Walker to pay costs. Mr Walker was present in court at that time. The defendants foreshadowed certain special orders as to costs. I directed that the defendants should file and serve a notice of motion in the usual way. 2. By notice of motion filed on 28 November 2017, the defendants sought orders as follows; 1. Pursuant to s 98(4) of the Civil Procedure Act order the plaintiff to pay the defendants' costs in a specified gross sum. 2. The plaintiff to pay the defendants' costs on an indemnity basis from 28 March 2017. 3. Such further or other orders, including the amount of the specified gross sum for the defendants' costs to be paid by the plaintiff, as the Court deems appropriate. 1. The defendants' notice of motion is supported by an affidavit sworn on 28 November 2017 by Bruce Cantrill, a solicitor employed by the Crown Solicitor. Some of Mr Cantrill's evidence is referred to later in these reasons. 2. The proceedings returned before me on 29 November 2017. Mr Walker did not appear on that occasion. I proceeded to make the following orders: 1. Noting that Mr Walker is not present today, I make the following orders: 2. Note that the notice of motion and affidavit in support filed by the defendants was served on the plaintiff on 28 November 2017. 3. Order that the plaintiff file and serve any evidence upon which he proposes to rely by 15 December 2017. 4. Order that the defendants file and serve written submissions by 22 December 2017. 5. Order that the plaintiff file and serve written submissions by 19 January 2018. 6. Note that the Court will deal with the defendants' notice of motion on the papers. 7. Grant liberty to the parties to apply on 3 days' notice. 1. I directed the defendants to provide Mr Walker with a copy of my orders by no later than the close of business on that day. I am informed by Ms Graham of counsel for the defendants that this was done. 2. The defendants' submissions were received by the Court in accordance with the orders that I made. Mr Walker has neither filed any evidence nor any submissions. Consideration 1. After the commencement of the proceedings, the defendants wrote to Mr Walker on 27 March 2017 in terms that included the following: "Without Prejudice Save as to Costs … I am instructed to provide you with an opportunity to discontinue these proceedings on the basis that each party bear their own costs. The defendants have incurred costs in the order of $8,000 to date, but are willing to forego seeking payment of those costs if this offer is accepted. Acceptance of my client's [sic] offer is conditional upon a consent order being filed by the parties with the Court on the following terms: 'By consent and without admissions: The Court orders: 1. Verdict for the defendants; 2. Each party to bear their own costs.' This offer is open for acceptance until 5.00pm on Monday, 24 April 2017." 1. That offer was not accepted in accordance with its terms. By a further letter dated 14 June 2017, the time for acceptance of the offer was extended until 5.00pm on Friday, 23 June 2017. It still was not accepted. The defendants' notice of motion, upon which they were wholly successful, was thereafter filed on 14 July 2017. 2. Mr Cantrill has deposed to a belief that the defendants' costs to the date of his affidavit incurred in the proceedings, including the present application, amounted to $33,396.09. Mr Cantrill said that "the great majority of costs were incurred after 27 March 2017". He also said that in his 28 years of experience as a solicitor in the Crown Solicitor's Office, costs ordered on an ordinary basis would be assessed at the rate of approximately 80 percent of those costs, and costs ordered on an indemnity basis would be assessed at the rate of approximately 90 percent of those costs. 3. Mr Walker was wholly unsuccessful in his defence of the defendants' application summarily to dispose of the proceedings. The defendants' offer to compromise the proceedings on the terms indicated was both reasonable and generous. If properly advised, Mr Walker could not have failed to understand this. It is unfortunate that he was never legally represented, despite a referral to the pro bono legal assistance scheme. 4. In my opinion, the defendants' offer to compromise the proceedings was a genuine offer and Mr Walker's rejection of it, or his failure to accept it, was clearly unreasonable. The result in the proceedings for Mr Walker is considerably less advantageous for him than if the offer had been accepted. 5. I consider that the defendants are entitled to their costs on an ordinary basis up to and including 27 March 2017 and thereafter on an indemnity basis. 6. The question remains whether or not a specified gross sum costs order should be made. The principles that apply to an application pursuant to s 98(4) of the Civil Procedure Act 2005 are well settled and not in doubt: see, for example, Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820]. The purpose of the rule is, among others, to avoid the expense and delay associated with the assessment of costs, especially in circumstances where the party against whom the order is to be made is not financially robust. 7. Having regard to the overriding purpose, it seems to me that requiring the parties to engage in the time consuming and (additionally) expensive exercise of a contested assessment, would be neither quick nor cheap. Delays associated with any such course would also derogate from the justice of the case from the perspective of both the defendants as well as Mr Walker. 8. I consider that a specified gross sum costs order should be made in this case. 9. Doing the best I can, having regard to the defendants' uncontested calculation of the costs incurred to date, and to the ratio of costs payable on an ordinary basis to costs payable on an indemnity basis, I consider that it is appropriate to order the payment of costs in an amount of $18,500. 10. It is typically appropriate to apply a discount in awarding a specified gross sum as discussed by her Honour Beazley JA in Hamod at [814]. The discretion to do so is at large. The defendants contended that a 10 percent discount would be appropriate. In my opinion, having regard to the fact that Mr Walker has at all times acted without legal advice or assistance, and to the fact that the defendants are presumably all required to conduct litigation from the position of a model litigant, a discount in the order of one third of the defendants' estimated costs seems to be appropriate. Orders 1. In the circumstances I make the following order: 1. Order the plaintiff to pay the defendants' costs in a specified gross sum of $18,500. ********** 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: 01 February 2018