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JUDGMENT

1. In June 2024, I made orders under ss 60F and 60J of the Limitation Act 1969 (NSW), extending the time for Ms Naboulsi to commence these proceedings: Naboulsi v Western Sydney Local Health District [2024] NSWSC 744. This judgment deals with the resulting dispute between the parties about the appropriate costs order.
2. There is no issue about the Court's cost making power. Ms Nabousli seeks the usual order, costs following the event, she having obtained the leave the Health District opposed, namely, that it pay her costs. The Health District opposes that order, contending that the costs order should be that costs be costs in the cause.
3. The Health District's case is that it was reasonable, in all the circumstances, for it to oppose the leave sought as it did, as Ms Naboulsi's claims rested on alleged negligence which occurred during surgery in 1997, the passage of time resulted in problems for its defence of her claim, those who conducted the surgery not being able to be located to give evidence. Further, the expert evidence Ms Nabousli relied on did not rest on any contemporaneous documents, the surgical record not showing that a surgical clip had been lost during the procedure.
4. On its submission, like in Duncan v Commonwealth of Australia [2006] NSWSC 822 and Spaulding v Commonwealth of Australia (No. 2) [2006] NSWSC 81, the actual prejudice which the Health District suffered because of the long delay in pursuit of Ms Naboulsi's claims, warranted the exercise of the costs discretion to order that costs be costs in the cause.
5. That was disputed by Ms Nabousli, who contended that there had been no relevant conduct on her part which made it appropriate to depart from the usual order. The usual order that costs be awarded in favour of the successful party ought not to be displaced by what here arose to be considered, given what the Health District had unsuccessfully advanced.
6. I am satisfied that her case must succeed.
7. Even accepting that the Health District had not been wholly unreasonable in resisting the extension Ms Naboulsi required, it is relevant that nor had she been unreasonable in pursuing her application, as she did, after the 2020 MRI which first identified the metal object which had been left in her body. These circumstances are explained in the June judgment.
8. Ms Naboulsi argued that in those circumstances, the objective compensatory purpose of a costs order would not be met if there was a departure from the usual order in favour of the Health District.
9. The Health District contended that this was what had been ordered in analogous cases. I am not persuaded that the authorities relied on by the Health District establish that for which it contends, namely, circumstances similar to those which arise to be considered in this case.
10. The circumstances considered in both Duncan and Spaulding were entirely unlike those in which Ms Naboulsi was placed. They concerned claims arising out of the 1964 collision between the HMAS Melbourne and the HMAS Voyage, which was well known to the plaintiffs and who both commenced their cases in circumstances where many earlier such claims had come before the courts. Those authorities established no ratio which is relevant to what here arises to be determined.
11. In Duncan, consideration was given to s 60L of the Limitation Act, on which neither party relied in this case. That provision does not affect a court's general costs discretion, but permits it, when hearing an action brought as a result of an order made under Subdivision 2 or 3, to reduce the costs otherwise payable to a successful plaintiff, "on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period": at [5] That does not apply to the costs of this application.
12. The Limitation Act envisages no other departure from the usual exercise of the costs discretion, even if a defendant's opposition to an extension application is not unreasonable.
13. In Duncan, reference was made to Commonwealth of Australia v Smith [2005] NSWCA 478: at [5]. There, costs of successful extension applications also arose to be considered, and the Commonwealth, having opposed the application as a discrete issue and having failed, was ordered to pay Mr Smith's costs. There, Handley and Santow JJA noted that in in Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143, at 147, [121], it had been held that "… ordinarily a successful applicant, who allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable": at 159.
14. That was not Ms Naboulsi's case, she not having become aware of the clip left inside her body until many years after the limitation period expired.
15. It was also held in Smith that there is no rule that binds a judge to deny costs to an applicant for extension of the limitation period, that being within the judge's discretion: at [160].
16. It was there concluded that given the Commonwealth's failure to resist many earlier extension cases, it was open to find that it had acted unreasonably in Mr Smith's case: at [160]. The overriding purpose enjoining the parties to assist the Court in the just, quick and cheap resolution of the real issues in the proceedings: s 56(3) Civil Procedure Act 2005 (NSW), supported the conclusion that, again putting unsuccessful submissions as to prejudice based on the unavailability of documentation as the Commonwealth had in earlier cases, which had frequently already been found insufficient to constitute significant prejudice, supported the result that the primary judge's cost order should not be interfered with: at [161].
17. In the June judgment I considered the evidentiary problems which the passage of time had caused the Health District, it being unable to locate the 1997 surgical team. I observed that, unlike other cases, the relevant records are, however, available and that it is now recognised that "the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility ... will not mean that a fair trial cannot be obtained": Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at [89]; [2019] NSWCA 102 at [88].
18. I also noted that in R v Edwards (2009) 83 ALJR 717 at 722; [2009] HCA 20 it was held at [31] that "the fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair": at [68]. This understanding of what constitutes a fair trial had to be taken into account in resolving what lay in issue between the parties about the disputed extension, given the Health District's unsuccessful argument that it would be refused because a trial could not now be fair.
19. In the circumstances in which the Health District resisted the extension application, as it did, even if it was not unreasonable for it to do so, it must have opposed Ms Naboulsi's application appreciating that there was a real risk that it would not succeed.
20. Costs orders being intended to be compensatory, not punitive, as they are thus supports the conclusion that justice requires the refusal of the departure from the usual costs order which the Health District seeks: Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59.
21. In my view that also accords with the requirements of s 56 of the Civil Procedure Act 2005 (NSW), to facilitate the just, quick and cheap resolution of the real issues in the proceedings, by which the Court and the parties are bound. It now being well recognised that the absence of witnesses will not necessarily render a trial unfair. I thus cannot see that the Health District's unsuccessful resistance of the extension application warrants a departure from the usual costs order.