Costs in proceeding - serious injury application refused - parties filed written submissions
Source
Original judgment source is linked above.
Catchwords
Costs in proceeding - serious injury application refused - parties filed written submissions
Judgment (4 paragraphs)
[1]
Judgment: The plaintiff is ordered to pay the defendant's cost in both proceedings on a standard basis, to be assessed by the costs court in default of agreement.
[2]
By separate applications[1] the plaintiff Shatha Nona, sought leave pursuant to s 93(4)(d) of the Transport Accident Act1986 (Act) to commence a proceeding to recover damages in respect of injuries the plaintiff claims resulted from transport accidents in which she was involved on 10 December 2019 and 27 February 2020 respectively. The plaintiff claimed in each case she suffered a serious injury within the meaning of s 93(17)(a) and (c). By the time the applications came on for trial, the plaintiff pressed only that as a result of the 27 February 2020 accident she suffered a serious long‑term impairment or loss of body function of her cervical spine. She no longer relied on s 93(17)(c) of the serious injury definition, and the application in respect of the 10 December 2019 accident was abandoned.
On 16 December 2025 I determined that the plaintiff's application for leave in respect of the 10 December 2019 accident be dismissed and the plaintiff's application for leave to commence a common law proceeding in respect of the injury sustained in the 27 February 2020 accident be refused.[3]
The parties have since filed short written submissions concerning costs. The defendant seeks an order for its costs in both proceedings on a standard basis, to be assessed by the costs court in default of agreement. The plaintiff opposes any order for costs. Without reciting the submissions filed, the plaintiff suggests that she ought not be liable for the defendant's costs, in substance, because she was not properly advised or informed about the need for the plaintiff to show that the injury about which she complained and in respect of which she sought leave can be disentangled to show a discrete injury occurring on 27 February 2020. The plaintiff also claimed that she was unable to properly articulate her case because she was instructed by her pro bono barrister to respond to questions with "yes" or "no" answers. In the result the plaintiff claims her time was wasted, as well as the Court's time with a failed application and inconsistent evidence.
This is a complaint about the quality of the advice and representation the plaintiff received - about which I make no finding - but it provides no cogent basis to resist a costs order.
The ordinary rule is that costs should follow the event. Here the defendant succeeded in both applications and the outcome of the litigation is an important element in the consideration whether to make a costs order. The plaintiff has not succeeded on any point raised and there is nothing about the conduct of the defendant - much less any suggestion of misconduct - which might disentitle it to the costs it seeks. The proceedings were not lengthened or delay by any conduct on the defendant's part and there is no part of the litigation which might be said to have been directed to pursuing an important point in the public interest as opposed to the pursuit of a private right and no more.
In the circumstances I consider there is no good reason for departing from the usual rule. Accordingly, the plaintiff should pay the defendant's costs of both proceedings.
[3]
The plaintiff pay the defendant's cost in both proceedings on a standard basis, to be assessed by the Costs Court in default of agreement.