Kwiatkowski v Plum Pictures Limited & Anor

Catchwords: CIVIL PROCEDURE – costs – where a notice of motion originally filed under s 73 Civil Procedure Act – where there is no dispute regarding the promise or settlement of interlocutory proceedings within principal proceedings – where the undertaking of the second defendant not to enforce costs unless the plaintiff attempts to recommence proceedings is noted

Legislation Cited: Civil Procedure Act 2005 (NSW) s 73
Workplace Injury Management and Workers Compensation Act 1998 (NSW) chap 7

Category: Procedural rulings

Parties: Anne Kwiatkowski (plaintiff)
Plum Pictures Limited (first defendant)
Michelle Thomas t/a Rapid Environmental Response Unit (second defendant)

Representation: Counsel:
Ms A McQuillen (plaintiff)
Mr A Hourigan (first defendant)
Mr N Simone (second defendant)
Solicitors:
G H Healey & Co Lawyers (plaintiff)
Mangioni Biggs + Co (first defendant)
Sparke Helmore Lawyers (second defendant)

File Number(s): 2019/53869

Publication restriction: Nil

EX-TEMPORE JUDGMENT (REVISED)

1. This matter has a slightly complex history, but it is not necessary for me to descend into all its detail for today’s purposes.

2. The matter first came before me on 9 April 2025 when the plaintiff’s notice of motion of 27 March 2025 was listed for hearing. That motion sought to discontinue the proceedings to enable the plaintiff to take necessary steps to comply with the pre-filing procedures stipulated by Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM”).

3. So far as the second defendant, for whom Mr Simone of counsel appears, is concerned, the plaintiff’s motion can be disposed of on a consent basis. The agreement reached may be summarised briefly. On 9 April 2025, the second defendant’s solicitor, Mr McGrath, appeared and informed me that he was of the view that the extant issue subsisting between the second defendant and the plaintiff had been resolved by way of agreement. Mr McQuillen of counsel, who appeared then and again today for the plaintiff, did not immediately acquiesce in Mr McGrath’s understanding of the position.

4. As there were other reasons why the hearing of the motion of 27 March 2025 had to be adjourned, which I expressed at the time, and because of the impending hearing date of the principal action of 2 June 2025, I directed the second defendant to file a motion seeking orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) (“CPA”), and evidence in support, for the specific enforcement of what the second defendant asserted involved the settlement of the proceedings.

5. I must confess, at the time I understood the asserted agreement to be one which resolved the whole of the proceedings (which I hereinafter refer to as the “principal proceedings”) and not just the plaintiff’s notice of motion of 27 March 2025, but that was my misunderstanding. I am not sure that that makes a great deal of difference, and I am provisionally of the view that although ordinarily s 73 CPA might apply to a compromise or settlement of the whole of the principal proceedings, there seems to be no reason in principle why it could not equally apply to the compromise or settlement of interlocutory proceedings within the principal proceedings.

6. In any event, in compliance with my orders, a motion, with an affidavit in support, was filed pursuant to s 73 CPA on 14 April 2025. The plaintiff did not file any evidence in contradiction of the material filed on behalf of the second defendant. But when the hearing of the motion of 14 April 2025 was called this morning, Mr McQuillen took me to correspondence dated 2 April 2025 contained within Exhibit JM-1 to Mr McGrath’s affidavit, particularly referring me to the penultimate and final paragraphs (on p 47) which are in the following terms:

“In the circumstances, it is only appropriate that the plaintiff confront the usual consequences of such a discontinuance and pay the second defendant’s costs of the proceedings on an ordinary basis.

We are however prepared to seek our client’s instructions to proffer an undertaking that such a costs order not be assessed or enforced against the plaintiff so long as there is no attempt by her to reinstitute this or similar proceedings against our client.”

7. In response to that letter, on 7 April 2025, the plaintiff’s solicitor, Ms Katarina Healey wrote (at p 49 Ex JM-1):

“We refer to your correspondence dated 2 April 2025 received by email at 4.35pm that day. We have instructions to accept an undertaking from your client that your client’s costs not be assessed or enforced against our client so long as our client does not reinstitute these or similar proceedings against our client (sic).”

I take it that the word “our” above is a typographical error for the word of “your”.

8. Mr McQuillen’s point was that notwithstanding that correspondence, no undertaking had in fact been proffered. When that point was made, I raised it with Mr Simone, who obtained instructions to convey the second defendant’s undertaking to the Court in accordance with the terms set out in the correspondence.

9. However, during Mr Simone’s submissions, counsel pointed out that the form of relief sought in the motion of 14 April 2025, specifically pursuant to prayer 1(a), in fact articulated the undertaking in the terms sought by Ms Healey. Counsel’s point really was that that was a sufficient indication that the second defendant was making the relevant undertaking to the Court in respect of that matter. It seems to me that there is force in Mr Simone’s argument in that regard.

10. Notwithstanding the undertaking, the second defendant does seek an order that the plaintiff pay her costs of the motion in accordance with prayer 2 of the motion on the bases that:

(a) the undertaking was proffered in the motion, and (b) no consent was forthcoming from the plaintiff until after the commencement of argument before me today.

11. It could be said that the only costs that remain in dispute are the costs of today’s hearing. I accept Mr McQuillen’s argument that the correspondence referred to did not in fact articulate the relevant undertaking, rather it appears to be an invitation to treat and Ms Healey’s letter of 7 April 2025 in response is not an acceptance of an offer but rather the offer itself, the acceptance of which was not clear until the filing of the second defendant’s motion of 14 April 2025.

12. It would seem to me that the costs of today would have, in all probability, been incurred in as much as I had adjourned the plaintiff’s motion of 27 March 2025 until today, and the resolution of the matter would have nonetheless required an appearance on behalf of the second defendant, although perhaps not by counsel.

13. In all the circumstances, I think that the appropriate way to dispose of the costs application is to say that the second defendant’s costs of the notice of motion of 14 April 2025, including the costs of today, are the second defendant’s costs in the cause which, like all other costs in the proceedings, will be covered by the costs order I will pronounce and the proffered undertaking.

14. For the reasons I have given, my orders are:

15. The plaintiff has leave to discontinue her claim against the second defendant by filing a notice of discontinuance endorsed with the matter “filed pursuant to orders made by Campbell J on 2 May 2025”.

16. The plaintiff is to pay the second defendant’s costs of the proceedings, including the costs of the second defendant’s motion of 14 April 2025 on the ordinary basis.

17. The Court notes the second defendant’s undertaking proffered on her behalf by her solicitor, Mr McGrath, that the second defendant will not assess or enforce the costs order so long as no further claim is made or proceedings issued in respect of the same accident or cause of action the subject of these proceedings.

18. By and with the consent of the second defendant and the first defendant, the second defendant’s cross claim against the first defendant is dismissed with no order as to costs.

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