These reasons concern the cost consequences which follow from the principal judgment delivered in these proceedings on 23 September 2022: De Roma v Inner West Council [2022] NSWDC 425.
In that decision the following dispositive orders were made at [363]:
(1) Verdict and judgment for the first defendant on the plaintiff's claim against that defendant;
(2) The plaintiff is to pay the first defendant's costs on the ordinary basis unless a party can show an entitlement to costs on some other basis;
(3) Verdict for the plaintiff against the fourth defendant in the assessed amount of $354,142.38;
(4) After applying the contributory negligence finding of 20 per cent, judgment for the plaintiff against the fourth defendant in the amount of $283,314;
(5) The fourth defendant is to pay the plaintiff's costs of the proceedings against that defendant on the ordinary basis unless a party can show an entitlement to costs on some other basis;
(6) The exhibits may be returned;
(7) Liberty to apply on 7 days' notice if further or other orders are required.
On 6 October 2022, the first defendant filed a notice of motion supported by an affidavit of 29 September 2022 by its solicitor, Ms Joan Williams, seeking the following orders:
"1. Vacate order 2 made [by the Court] on 23 September 2022.
2. Pursuant to Uniform Civil Procedure Rule 42,15A, the plaintiff to pay the first defendant's costs of these proceedings on the ordinary basis up to and including 30 March 2020, and thereafter on an indemnity basis.
3. In the alternative, pursuant to Uniform Civil Procedure Rule 42.15A, the plaintiff to pay the first defendant's costs of these proceedings on the ordinary basis up to and including 13 November 2020, and thereafter on an indemnity basis.
4. In the alternative, pursuant to Uniform Civil Procedure Rule 42.15A, the plaintiff to pay the first defendant's costs of these proceedings on the ordinary basis up to and including 10 August 2022, and thereafter on an indemnity basis.
5. The plaintiff to pay the first defendant's costs of and incidental to this Motion."
De Roma v Inner West Council & Ausgrid [2022] NSWDC 562 | Case summary | Zoe
The affidavit of Ms Williams annexed copies of an offer of compromise dated 30 March 2020 and two subsequent letters concerning costs, respectively dated 13 November 2020, and 10 August 2022.
The first of those offers was in compliance with rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW), and invited the plaintiff to accept a judgment for the first defendant with no order as to costs. That offer was allowed to lapse without acceptance.
The second of those offers consisted of a letter reciting the history of relevant aspects of the litigation, and concluded with a renewal of the previously expressed first offer. The opportunity for the plaintiff to accept that offer was extended to 11 December 2020. That invitation was allowed to lapse without acceptance of the offer.
The third of the those offers again recited relevant aspects of the history of the litigation, including the advent of the plaintiff's amended statement of claim filed on 6 November 2020, and the joinder of the fourth defendant Ausgrid on 7 October 2021. The third offer was a renewal of the previously lapsed offer and extended the time for acceptance of that offer by the plaintiff to 12 August 2022. That invitation was also allowed to lapse without acceptance.
The form of the first of those offers was within the terms prescribed by the Uniform Civil Procedure Rules 2005, r 20.26 and it was therefore valid. The form of the second and third of those offers engaged the cost principles embodied in the decision in Calderbank v Calderbank [1975] 3 All ER 333.
On 7 October 2022, the plaintiff filed a notice of motion seeking an order that Order 2 made on 23 September 2022 as cited at paragraph [2] above, be vacated, and sought a further order to the effect that the fourth defendant indemnify the plaintiff in respect of her liability to pay the first defendant's costs the subject of Order 2 in the Orders made on 23 September 2022.
The timing of the above applications for costs coincided with the commencement of a period of pre-arranged leave. Accordingly, on 10 October 2022, with consent of the parties, the following facilitative consent orders were made in chambers:
"1. The plaintiff to file and serve any affidavit in respect of:
a. The first defendant's Motion filed 6 October 2022; and
b. The plaintiff's Motion seeking a special costs order,
by 24 October 2022
2. The fourth defendant to file and serve any affidavit in respect of:
a. The first defendant's Motion filed 6 October 2022; and
b. The plaintiff's Motion seeking a special costs order
by 31 October 2022
3. The first defendant to file and serve any affidavit in respect of the plaintiff's Motion seeking a special costs order by 31 October 2022.
4. The parties to file and serve written submissions, not exceeding two pages, in respect of:
a. The first defendant's Motion filed 6 October 2022; and
b. The plaintiff's Motion seeking a special costs order
by 7 November 2022."
On 1 November 2022, the fourth defendant filed an affidavit from Mr Jack Pembroke-Briss, solicitor, affirmed on 31 October 2022. That affidavit set out the history of the matter and incorporated relevant correspondence.
On 7 November 2022, the first defendant filed written submissions in respect of its application pursuant to Uniform Civil Procedure Rules 2005, r 42.15(A)(1), r 42.15A(2)(a) and r 42.15A(2)(b)(i), that the plaintiff pay its costs of the proceedings on the ordinary basis up to 30 March 2020, or alternatively, to 30 November 2020, or 10 August 2022, and on an indemnity basis thereafter.
The first defendant's alternative costs positions were based on the three settlement offers made by the first defendant on the 30 March 2022, 30 November 2020 and 10 August 2022. Those offers invited the plaintiff to settle the proceedings against the first defendant on the basis that there be judgment for the first defendant with no order as to costs: Uniform Civil Procedure Rules 2005, r 20.26(3).
The result of the plaintiff's proceedings against the first defendant has been that the first defendant has obtained a judgment no less favourable than was provided by each of the cited offers it made to the plaintiff. In these circumstances I consider there is no sound reason why the first of these offers should not form the basis for an indemnity costs order in favour of the first defendant against the plaintiff.
On the evidence adduced at the hearing, my assessment was that the plaintiff was never in a position to establish her claim in negligence against the first defendant: De Roma v Inner West Council & Ausgrid (2022) NSWDC 425 at [223]-[226].
In my view, the plaintiff's submission to the effect she had an arguable case against the first defendant which justified refusing each of the first defendant's offers, including because she had an arguable case against the fourth defendant, is untenable. The first defendant's offers did not depend upon the participation of the fourth defendant in any settlement.
In the circumstances, I consider that the justice of the case requires that the plaintiff should pay the first defendant's costs on the ordinary basis until 30 March 2020 and on an indemnity basis from 31 March 2020: Civil Procedure Act 2005 (NSW), s 98; Northern Territory v Sangare [2019] HCA 25 at [25].
I do not accept the plaintiff's argument that it was not reasonably open for her to accept any of the first defendant's offers because the first defendant owed a relevant duty of care, and there was a real possibility that the first defendant would be held liable. The evidence adduced does not support the conclusion that there was a real prospect of the first defendant being found liable. Although the alleged duty of care was undeniable, the availability of reliable evidence of an alleged breach of that duty of care was absent.
On the basis of the plaintiff being unable to avoid a costs liability to the first defendant, she alternatively seeks either a Bullock or a Sanderson order against the fourth defendant in respect of the costs liability to the first defendant Council, on the argued basis that the unsuccessful fourth defendant should reimburse the plaintiff for her costs liability to the first defendant: Bullock v London General Omnibus Co [1907] 1 KB 264; Sanderson v Blythe Theatre Co [1903] 2 KB 533.
In my view, that submission should not be accepted. Ausgrid only became a party to the proceedings on 7 October 2021. It would be an unjust and unreasonable exercise of the costs discretion conferred by s 98 of the Civil Procedure Act 2005, for the fourth defendant to be made liable for the costs incurred by the plaintiff as against the first defendant Council before the joinder of the fourth defendant.
The plaintiffs' counter argument to the effect that Ausgrid admitted that it had a relevant duty of care, the scope of which included the hazard which befell the plaintiff, meant, it was argued, that the first defendant Council would have been let out of the proceedings. In my view, that submission involves impermissible speculation and is unpersuasive.
In that regard, I accept the submission made by the fourth defendant Ausgrid, that there was nothing disclosed in the conduct of the litigation by the fourth defendant to suggest a reasonable or a proper basis for making an order that the fourth defendant be burdened with either of a Bullock or a Sanderson order.
The cases brought by the plaintiff against each of the respective defendants were entirely different in their focus. The fourth defendant was only on notice of the plaintiff's claim against it from 12 July 2021 by means of an email. In the proceedings, the fourth defendant was entitled to resist the plaintiff's claim of liability and require the plaintiff to prove her case against it, albeit that such resistance proved unsuccessful.
In the circumstances I consider that the usual order for costs should follow and the fourth defendant should pay the plaintiff's costs of the proceedings against it on the ordinary basis.
I make the following orders:
1. Order 2 made on 23 September 2022 is vacated to the effect that the plaintiff is to pay the first defendant's costs on the ordinary basis until 30 March 2020, and on the indemnity basis from the 31 March 2020;
2. I decline to order that the fourth defendant indemnify the plaintiff for her costs liability to the first defendant;
3. The plaintiff is to pay the first defendant's costs of the successful motion filed by that defendant on 6 October 2022;
4. The plaintiff and the fourth defendant are to each pay their own costs of the plaintiff's unsuccessful motion filed on 7 October 2022.
[2]
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Decision last updated: 18 November 2022