Jarosz v State of New South Wales (No 2) [2019] NSWSC 861

Jarosz v State of New South Wales (No 2) [2019] NSWSC 861

The plaintiffs were unsuccessful and the proceedings were not public interest litigation because their central purpose was to establish responsibility for maintaining the road to a higher standard, thereby improving access to their own properties. The usual rule that costs follow the event therefore applied. As to the Council, once the plaintiffs had the evidence of Mr Groll and the Council's letter of 10 April 2019, it should have been apparent that the public road claim was almost certainly doomed to fail because the relevant land was always Crown land; continuing the claim against the Council after that point was unreasonable and amounted to relevant delinquency warranting indemnity...

Jurisdiction
Australia
Judgment Date
10 July 2019
Procedural Posture
Costs Determination / On the Papers Following Dismissal of the Plaintiffs' Amended Statement of Claim
Outcome
Unsuccessful plaintiffs ordered to pay the defendants' costs, including part of the Council's costs on an indemnity basis.
Legal Topics
['costs Following the Event' 'public Interest Litigation' 'indemnity Costs' 'public Road at Common Law' 'private Nuisance']
['civil Procedure' 'costs' 'public Law'] ['costs Following the Event' 'public Interest Litigation' 'indemnity Costs' 'public Road at Common Law' 'private Nuisance']

Case Brief

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Procedural Posture

Costs Determination / On the Papers Following Dismissal of the Plaintiffs' Amended Statement of Claim

Legal Issues

  1. 1 ['Whether grounds existed to depart from the general rule that costs follow the event because the proceedings were said to be public interest litigation.' "Whether the plaintiffs should pay the State's costs on the ordinary basis." "Whether the plaintiffs should pay some or all of the Council's costs on an indemnity basis." "Whether the plaintiffs' continued conduct of the proceedings against the Council after service of evidence and warnings amounted to relevant delinquency."]

Ratio Decidendi

The plaintiffs were unsuccessful and the proceedings were not public interest litigation because their central purpose was to establish responsibility for maintaining the road to a higher standard, thereby improving access to their own properties. The usual rule that costs follow the event therefore applied. As to the Council, once the plaintiffs had the evidence of Mr Groll and the Council's letter of 10 April 2019, it should have been apparent that the public road claim was almost certainly doomed to fail because the relevant land was always Crown land; continuing the claim against the Council after that point was unreasonable and amounted to relevant delinquency warranting indemnity...

Court Disposition

Unsuccessful plaintiffs ordered to pay the defendants' costs, including part of the Council's costs on an indemnity basis.

Orders

  • ["The plaintiffs are to pay the Council's costs of the proceedings up to 24 April 2019 on the ordinary basis and thereafter on an indemnity basis." "The plaintiffs are to pay the State's costs of the proceedings on the ordinary basis."]