ROTH v RTA & ORS

Supreme Court of NSW|2008-10-28|Before: Hall J

Introduction 1 In these proceedings (No 20256 of 2005) brought by Maria Roth against the Roads and Traffic Authority of New South Wales ("RTA"), Wollondilly Shire Council and the third defendant, Mr Michael Thomas O'Halloran, judgment was given by me on 9 March 2007: Roth v RTA & Ors [2007] NSWSC 128. The hearing of those proceedings was a hearing on liability only as between Ms Roth, as plaintiff, and Mr O'Halloran, as defendant, the proceedings as against the RTA and the Council having been terminated. 2 In my judgment of 9 March 2007, I determined that the plaintiff was 60% responsible for the accident and the defendant, Mr O'Halloran, was 40% responsible: paragraph [127]. 3 Those proceedings were the subject of an appeal to the Court of Appeal: O'Halloran v Roth [2008] NSWCA 65.

Outline re the application for costs 4 This judgment concerns an application for costs. The application arises in unusual circumstances. It is important to observe that the present application was made on behalf of Mrs Roth, who was a defendant in separate District Court proceedings brought by members of the Vedric family to which I will refer below. Accordingly, Ms Roth was a party in two separate proceedings, as plaintiff in the proceedings determined by me and as a defendant in a number of separate proceedings brought against her in her capacity as a defendant. 5 On this application, Mr K P Rewell SC appeared both on behalf of Ms Roth as applicant and also on behalf of the RTA, he having appeared on their behalf in the Vedric proceedings. 6 With that background, it is clear that this application is not made on behalf of a party to these proceedings, namely, proceedings No 20256 of 2005 but by parties to separate proceedings arising out of the same motor vehicle accident. 7 The only evidence on the application is the affidavit of Andrew Vandervord, solicitor, sworn 1 July 2008. That affidavit conveniently sets out the relevant background and I have drawn upon it in recounting relevant factual matters.

Multiple proceedings 8 The accident that occurred on 20 April 2000 and which gave rise to a multiplicity of proceedings involved a two car collision. Ms Roth was one driver, Mr O'Halloran the other. Ms Roth suffered a number of injuries and it is contended that a passenger in her vehicle, Sabina Vedric, also sustained injury.

(a) The Vedric proceedings 9 District Court proceedings (No 3557 of 2003) were brought by Sabina Vedric, by her next friend, against the RTA and Wollondilly Shire Council. Mr Rewell observed during submissions that these were resolved by being withdrawn. Separate proceedings were also instituted by Sabina Vedric against Maria Roth (No 5847 of 2003). Ms Vedric was and is a minor. 10 In Sabina Vedric's action against Ms Roth, Mr Rewell was instructed to appear for Ms Roth on the instructions of the CTP insurer of the vehicle driven by her. Those proceedings are now an assessment of damages only. Mr Rewell stated that, whilst the CTP insurer had admitted breach of duty to Sabina Vedric, there remained an issue in those proceedings as to "… the role of the Council with whom no accommodation had been reached as between CTP insurer and the Council" (transcript, 28 October 2008, p.5). 11 District Court proceedings were brought by Stepjan Vedric, father of Sabina Vedric, against RTA and Wollondilly Shire Council seeking damages for nervous shock (proceedings No 3558 of 2003). 12 District Court proceedings were brought by Snjezana Vedric, mother of Sabina Vedric, against RTA and Wollondilly Shire Council (proceedings No 3559 of 2003) also seeking nervous shock damages. 13 Although the pleadings have not been put into evidence on this application, on the basis of what I have been told from the bar table it appears that the defendants to the above District Court proceedings, RTA and Wollondilly Shire Council, brought proceedings by way of cross-claim against Maria Roth and the other driver involved in the accident, Michael O'Halloran. 14 The proceedings to which I have referred in paragraph [9] to [14] were referred to in Mr Vandervord's affidavit (four separate proceedings) as the "Vedric proceedings".

(b) The Roth proceedings 15 Proceedings were originally brought by Maria Roth in the District Court against RTA, Wollondilly Shire Council and Mr O'Halloran (proceedings No 1493 of 2003). These proceedings which were later transferred into this Court and were referred to in Mr Vandervord's affidavit as the "Roth proceedings". 16 I was advised from the bar table that, on 18 July 2003, the District Court in Wollongong ordered that the proceedings by Ms Roth for personal injury and the other three matters (the Vedric matters) be heard together. However, no order was made for consolidation of the proceedings.

The adjournment granted by the District Court 17 On 16 May 2005, the Roth and the Vedric proceedings were listed for hearing in the District Court (Hughes DCJ) on the basis of a seven day estimate. 18 On that occasion, Mr B M J Toomey QC with Ms M L Holz of counsel appeared on behalf of the plaintiff, Ms Roth in the Roth proceedings, Mr J E Maconachie QC with Mr D Weinberger of counsel appeared on behalf of the first defendant and Mr Rewell appeared on behalf of the defendant (RTA) and Ms C Adamson SC with Mr B Kelleher of counsel appeared on behalf of the third defendant, Mr O'Halloran in those proceedings. 19 In the Vedric proceedings, Mr S J Longhurst of counsel appeared on behalf of the plaintiff in each action. Mr M Joseph SC appeared with Mr S Glascott of counsel for the Council in the proceedings brought against it and against the RTA. Mr Rewell appeared on behalf of the RTA and the cross-defendant and Ms C Adamson SC and Mr B Kelleher of counsel for Mr O'Halloran. 20 Mr Rewell stated in submissions that all issues in the Vedric proceedings had been dealt with and there was only one of the actions in that group remaining (the action by Sabina Vedric). 21 A copy of the transcript of the hearing before Hughes DCJ on 16 May 2005 was attached and marked as Annexure A to Mr Vandervord's affidavit. I have had reference to it for the purpose of this application. 22 On 16 May 2005, when the proceedings came before Hughes DCJ, an application was made by Mr Toomey on behalf of Ms Roth for an adjournment of the proceedings. The adjournment application was made upon the basis that the jurisdiction of the District Court in relation to the action against the RTA and the Council was limited to $750,000. (The jurisdiction of the Court was, of course, unlimited in relation to the action against Mr O'Halloran.) Reference was made to the fact that Ms Roth had sustained "substantial brain damage" (transcript, 16 May 2005, p.4). 23 Mr Maconachie, on behalf of the RTA, indicated that (transcript, 16 May 2005, p.5):- "We will not oppose or consent to an application under s.145 to transfer to the Supreme Court …" 24 Mr Maconachie indicated that, in the event that Hughes DCJ were to grant the application for an adjournment, then questions of costs would arise. 25 Mr Joseph SC, on behalf of the Council, indicated that his client would "not oppose unlimited jurisdiction in this matter" (transcript, 16 May 2005, p.7). 26 Mr Rewell indicated to his Honour that, in the action brought by Sabina Vedric, he appeared for Maria Roth as a defendant in the interests of the CTP insurer. Ms Roth, he noted, was also a cross-defendant in the other two Vedric actions. She was, accordingly, the insured of the CTP insurer in three of the Vedric proceedings. 27 Mr Rewell noted that he appeared in the Vedric proceedings in the name of Ms Roth in a completely different interest which was "… at odds with those in respect of Ms Roth as plaintiff" (transcript, 28 October 2008, p.5). 28 In the course of her submissions, Ms Adamson noted, as was the case, that the Court had unlimited jurisdiction so far as the claim against Mr O'Halloran was concerned. However, in relation to the question of the effect of a judgment of the District Court, Ms Adamson noted (transcript 16 May 2005, pp.10 to 11):- "… In relation to what our friend Mr Rewell has said, namely that a decision of the District Court has no effect, might I respectfully remind the court of the judgment of the Court of Appeal in Rippen v Shilcoaton [sic] which is reported in the NSWLR, from recollection it's volume 52, in which the court articulated a new principle, well, on one view new principle of estoppel which was that a party who has lost an issue in one proceedings cannot seek to relitigate that issue in another proceedings. And to do so would be an abuse of process which will be restrained by the court. If we take, for example, the proceedings brought by Sabine [sic] Vedric, one of the passengers, against Wollondilly Shire Council and the RTA. Were that case to proceed in this court and were your Honour to find, for example, that Wollondilly Shire Council were negligent in those proceedings then in light of the authority of Rippen v Shilcoaton [sic] it would be an abuse of process for the council to argue in the Supreme court proceedings brought by Maria Roth that it was not negligent. That is obviously a highly undesirable circumstance to place the parties in , just as this court has deemed it desirable that all issues of liability relating to this accident between all parties in respect of which a claim is brought, and they are the Vedrics and the Roths, be dealt with in the single proceedings, in our respectful submission by reason of Rippen v Shilcoaton [sic] and also the principle that all issues be determined together if possible if this matter were to be adjourned in order that the Supreme Court could order that these matters be transferred to it then it is highly desirable that they all go together. As to the question of costs our friend Mr Maconachie has averted [sic] to that. Obviously that's really the only issue apart from keeping all these matters together." 29 Ms Adamson noted that, in relation to the adjournment application of what had been set down as a seven day hearing, there seemed to be no particular reason that would justify the application made by Mr Toomey on Ms Roth's behalf for an adjournment having been made so late in time. 30 The basis for the adjournment application made by Mr Toomey on behalf of Ms Roth was that the District Court's jurisdiction, so far as the action against the RTA and the Council were concerned, was limited to the amount of $750,000. As a practical matter, that jurisdictional limitation was no longer relevant so far as the action against the Council was concerned given that the Council was prepared to consent to extended or unlimited jurisdiction in the District Court. The difficulty was that no such instructions were obtained on behalf of the RTA and, accordingly, jurisdiction in relation to any claim against it was limited to the statutory maximum amount.

The application for costs 31 The present application made by Mr Rewell on behalf of this client, the compulsory insurer of Ms Roth and on behalf of the RTA in respect of the Vedric proceedings, arises in circumstances in which Hughes DCJ declined to make an order for costs and instead reserved the question of costs. 32 As earlier indicated, the Vedric proceedings and the Roth proceedings were all subsequently transferred to this Court. Presently, the only outstanding matters concern the damages hearing in the claim by Sabina Vedric (liability no longer being in issue) and the issue of damages in the proceedings brought by Ms Roth against Mr O'Halloran. Based on the matters stated by Mr Rewell, it appears the action by Sabina Vedric also involves "… the role of the Council with whom no accommodation had been reached as between the CTP insurer and the Council" (transcript, 28 October 2008, p.5). 33 Mr Rewell contended that the Court has power to make an order for costs in favour of his clients (Ms Roth/CTP insurer and RTA) in the Vedric proceedings, against Ms Roth, the plaintiff in the Roth proceedings. Mr Rewell also contended that, as a matter of discretion, such an order should be made, given the fact that the application for an adjournment before Hughes DCJ was made after the proceedings had been set down for hearing and any issue arising from limited jurisdiction should have been identified earlier by the legal representatives for Ms Roth. 34 Mr Rewell acknowledged that there was a "potential difficulty" which he had referred to before his Honour Judge Hughes. This difficulty, he noted, arose from the fact that the proceedings brought by Ms Roth "… did not involve my client, the CTP insurer of her vehicle, obviously …" (transcript, 28 October 2008, p.6). Mr Rewell proceeded to discuss "the potential difficulty" by reference to the provisions of s.98 of the Civil Procedure Act 2005 and Rule 42.3 of the Uniform Civil Procedure Rules. 35 Section 98(1) provides as follows:- "98(1) Subject to rules of Court and to this or any other Act:- (a) Costs are in the discretion of the Court, and (b) The Court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) The Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." 36 Mr Rewell also relied upon the powers of the Court provided for in Part 42, Rule 42.3(2)(b) of the Uniform Civil Procedure Rules 2005, which provides as follows:- "42.3(1) Subject to Rule 42.27, the Court may not, in the exercise of its powers and discretions under s.98 of the Civil Procedure Act 2005 make any order for costs against a person who is not a party. (2) This Rule does not limit the power of the Court:- (a) … (b) to make an order for payment, by a person who:- (i) is bound by an order made, or judgment given , by the Court in proceedings or is bound by an undertaking given to the Court in proceedings, and (ii) fails to comply with the order or the judgment or breaches the undertaking, of the whole or any part of the costs of a party to the proceedings occasioned by the failure or the breach, …" (emphasis added) 37 In support of the present application, Mr Rewell stated (transcript 28 October 2008, p.6):- "We make the application for costs based on our appearance before Judge Hughes, which was in all the Vedric cases, but there will only be one. In effect it would be repetitive to repeat more than one. But we did appear in the case by Sabina Vedric against Maria Roth and in the case of Sabina Vedric against the RTA. So it was not limited only to the proceedings in which Ms Roth was a defendant. That, I must say, takes away any force, if there ever had been any, in my learned friend's complaint that, in effect, Ms Roth seeks costs from Ms Roth. We also seek costs in respect of our appearance for the RTA in those Sabina Vedric proceedings. I alerted Judge Hughes to the fact that one potential difficulty which I had hoped argue that day was that the proceedings brought by Ms Roth did not involve my client, the CTP insurer of her vehicle, obviously. Now your Honour needs to be aware of the rules in respect of that potential difficulty …" 38 Mr Rewell then proceeded to refer to s.98 of the Civil Procedure Act and contended that the section permitted the Court to make orders against persons "who are not formally parties to the proceedings" (transcript 28 October 2008, p.6). 39 He also then referred to the provisions of Rule 42.3 of the Uniform Civil Procedure Rules. 40 Mr Rewell referred to the submission of Ms Adamson before Hughes DCJ, that "… all parties were bound, and that is all parties present were bound by any judgment or order of the court in connection with the issue of liability …" (transcript, 28 October 2008, p.7). Mr Rewell, in referring to the effect of the Court of Appeal's decision in Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198. There, Handley JA, with whom Mason P and Heydon JA (as his Honour then was) agreed, said (transcript, 28 October 2008, p.7):- "… where an ultimate issue is litigated and determined by the court in proceedings then it will be an abuse of process to re-litigate the same ultimate issue in different proceedings even if different parties are involved. It is probably fair to say that the court extended in some respect what we understood to be the principles concerning issue estoppel. So as Ms Adamson … pointed out, that decision made it necessary that the issue of liability involve all of the parties. Therefore, Mr Toomey's application to adjourn made it impractical for the Vedric proceedings to proceed or, to put it another way, legally impermissible for those proceedings to be heard by Judge Hughes." 41 Mr Rewell stated that the application was that Ms Roth, as plaintiff in her own proceedings, pay the costs of his client which he referred to as "the CTP insurer of Ms Roth in the Vedric proceedings" (transcript, 28 October 2008, p.2) and the RTA. 42 Mr Rewell observed (transcript, 28 October 2008, p.4):- "… the courts have now long recognised that where a CTP insurer stands behind the name of a certain party then, in effect, the insurer is to be regarded as the party." 43 Mr Rewell confirmed that his application rested upon the provisions of Rule 42.3(2)(b). However, his attention was drawn to the need to establish, in this case, that Ms Roth was a person who "is bound by an order made or a judgment given" and, additionally, that there had been a failure by her "… to comply with the order or the judgment", in accordance with the terms of Rule 42.3(2)(b)(i) and (ii). 44 In response, Mr Rewell stated (transcript 28 October 2008, p.7):- "The ultimate judgment would be the orders and judgment as to liability in the proceedings, being the same accident, the same facts and calling for a determination of who was liable. The ultimate issue in both cases were the same, that's why they were listed together in the first place." 45 Even assuming that there had been a judgment or order made in respect of liability in the proceedings brought by Sabina Vedric involving Ms Roth, the rule did not, in my opinion, establish that such would be an order or judgment of the kind referred to in Rule 42.3(2)(b)(i) of the Uniform Civil Procedure Rules. In any event, Mr Rewell did not seek to establish how there had been any failure by Ms Roth to comply with an order or judgment to which the rule referred. Mr Rewell simply responded (transcript, 28 October 2008, pp.7 to 8):- "It is difficult to put those words into this context, but it seems clear what the rule is trying to do. I'm not sure that we need recourse to the rule anyway, but that's the best provision in the rules that I could find that deals with this situation." 46 Mr Rewell proceeded to argue that, where all parties are involved in the hearing in respect of which orders of a court may bind all the parties to the proceedings, it would be "artificial" to say that, for the purposes of the hearing before the District Court (before Hughes DCJ), that they were "… entirely independent proceedings" (transcript, 28 October 2008, p.8). He contended that they were obviously not independent proceedings "… because they were hearings which were to be determined together" (transcript, 28 October 2008, p.8). On that basis he contended that that is what brought the present application within the rule "… because, in effect, the proceedings were to be heard - it is wrong to say that they became the one proceedings, but they were separate proceedings being heard and determined together insofar as the issue of liability was concerned" (transcript, 28 October 2008, p.8). 47 Later in his submissions, Mr Rewell referred to the fact any judgment on liability would have bound Ms Roth in the proceedings brought by the Vedrics. He contended (transcript, 28 October 2008, p.11):- "The inferential power that flows from that, I agree, has to be attempted to fit within the words of 42(3)(2)(b)(ii), but the intention clearly of 42(3)(b) is that in circumstances such as this where a person is not a party but is bound by the order of the court then costs orders can be made." 48 Counsel added that his "fallback position" was (transcript, 28 October 2008, p.11):- "… that having regard to the fact that the proceedings were being heard together and that the no doubt single judgment of the court would bind all of the parties then the word 'proceedings' should be given an interpretation such that Mrs Roth was a party to the proceedings which also involved the Vedrics. It seems artificial, with respect, to give it any other construction. There became a proceedings in which evidence was about to be given." 49 Mr Rewell acknowledged that if, however, there were separate judgments given in separate proceedings, they would have to be judgments "on liability in identical terms" (transcript, 28 October 2008, p.17). He contended, accordingly, that, in such circumstances it was (transcript, 28 October 2008, p.11 to 12):- "… rather artificial to say that Mrs Roth as a plaintiff was not party to proceedings, giving that word its intended meaning for the purpose of this sub rule, because evidence was to be given in the proceedings and a judgment was to be given in the proceedings which bound all of the parties. So they became parties in the proceedings. Any other interpretation simply fails to give the rules their proper effect because there was a single hearing to take place before the same judge at the same time to result in a single judgment. If one participant conducted herself so that an order for costs against her was appropriate, it makes no sense, with respect, to exclude from the effect of such an order a party involved in that hearing and involved in that judgment who is completely blameless, which was the position my client found itself in."

Submissions for the respondent 50 Mr Toomey raised three matters in resisting the application:-

(1) That although an order had been made that the proceedings by Ms Roth and the Vedric matters be heard together, they were not consolidated and therefore did not become one action.

(2) Mr Rewell, in appearing for Ms Roth (in effect, in her capacity as a defendant), was seeking costs against herself in the Roth proceedings . In seeking to do so, Mr Rewell was clearly in a conflict position.

(3) That Rule 42.3(2)(b) did not apply, there being no order or judgment as referred to in that Rule and, accordingly, breach of any such order or judgment had not been established. 51 In addition, Mr Toomey contended that the application made by Ms Roth for an adjournment of the proceedings was not one made arbitrarily or capriciously. He contended that the adjournment application was a legitimate one on behalf of Ms Roth in her proceedings to which Mr Rewell's clients were not parties. He added that it would "… be an extraordinary thing if a discretionary power would be used to order a person who takes proper action in their own interest to pay the costs of someone in a separate case" (transcript, 28 October 2008, p.14). 52 Mr Toomey also contended that the potential problem of the limited jurisdiction of the District Court was a matter that had not been picked up by those acting on her behalf but that this could be seen as "understandable" (transcript, 28 October 2008, p.14). Mr Toomey submitted (transcript, 28 October 2008, p.14):- "What my learned friend is saying is that the legitimate action of Ms Roth in an action to which he was not a party, not an arbitrary action or a capricious action but an action properly taken in her defence in the conduct of her own case, should require her to pay costs to him who had nothing to do with that case. Setting aside the question of primary power, and we would submit that the doubts your Honour has raised about the application of 42(3)(b) are clearly right, setting that aside for the moment, it would be an extraordinary thing if a discretionary power would be used to order a person who takes proper action in their own interest to pay the costs of someone in a separate case."

Submissions in reply 53 Mr Rewell responded by contending that (transcript, 28 October 2008, p.14):- "…the fallacy of Mr Toomey's argument that something turns on the fact that I nominally appeared for Ms Roth is clearly demonstrated by the fact that in the Vedric actions breach of duty of care was admitted by the CTP insurer of Ms Roth. In the action brought by Ms Roth as plaintiff any liability on her part was denied. No one raised any question about the legitimacy of both positions being held in a hearing where the evidence on the topic of liability was given affecting both proceedings and judgment was to be delivered affecting both. That demonstrates, if further demonstration was needed, as your Honour rightly pointed out, the interest which my client appeared in were wholly different from those in which Mr Toomey appeared."

Jurisdiction to award costs against a non-party 54 The present application requires consideration of both the Court's jurisdiction and the discretion in it to award costs as sought in the present application. 55 The power to award costs is a statutory power. Before examining the nature and extent of the power, I will briefly refer to the traditional categories of jurisdiction to award costs against non-parties before costs became the subject of statute. 56 Historically, the courts at common law had no inherent jurisdiction to award costs: Knight v FP Special Assets Limited (1992) 174 CLR 178, 182 per Mason CJ at Deane J. 57 Accordingly, it was recognised that the awarding of costs in common law courts was entirely a creature of statute: Garnett v Bradley (1878) 3 AC 944, 962. 58 In general terms it was accepted that a court could not make an order against a person who is not a party to proceedings, save for specific categories: Knight (supra) at 186. The strict rule was that only parties on the record of the proceedings are bound by the orders in the proceedings. 59 However, in certain cases, before the Judicature Acts, it was held that jurisdiction existed to make an order against a non-party "who was the real party": Knight (supra) at 187 to 189. 60 Against that background, it is relevant to have regard to both the provisions under the Supreme Court Act 1970 and the Uniform Civil Procedure Rules. The power of the Court in relation to costs is, as earlier noted, a statutory one: Wentworth v Wentworth (2001) 52 NSWLR 602, 635. As Heydon JA (as his Honour then was) observed at [161]:- "Unless a power to order costs can be found in that Act (the Supreme Court Act), any other Act or the rules, it does not exist: Leicester v Walton (Court of Appeal, 22 November 1995, unreported) at 12. The area of operation of s.76(1) (of the Supreme Court Act) necessarily depends on the scope, as it exists from time to time, or the provisions of any other enactments dealing with costs …" 61 The provisions of Part 52A Rule 4, which were under consideration in Wentworth (supra), provided, in relation to the powers of the Court, inter alia, that:- "4(2) Subject to sub-rule (5), the Court shall not, in the exercise of its powers and discretions under s.76 of the Act, make any order for costs against a person who is not a party." 62 Heydon JA in Wentworth (supra) at [162] referred to the explanatory note in relation to the enactment of the precursor to Part 52A Rule 4 which stated that "… the object of the amendment … is to restrict the power of the Court in making a costs order against a person who is not a party". 63 Heydon JA then observed:- "The effect of Pt 52, and now Pt 52A, is to abolish several traditional categories of jurisdiction to order costs against non-parties discussed in Knight v FP Special Assets Limited (at 182-190) by Mason CJ and Deane J, and in particular the newly formulated category relating to insolvent persons … While opinions might differ as to the desirability of this abolition, the meaning of Pt 52 and Pt 52A is, in this respect, plain." 64 Heydon JA went on to state that Part 52A, Rule 4 was the only possible source of power in that case to order costs. 65 The position in the present case is that s.98(1), if unqualified, would clearly authorise the Court to make an order against a person in the position of Ms Roth. However, that power is expressed to be subject to the rules of Court, including the Uniform Civil Procedure Rules, Part 42.3(1). 66 In certain circumstances, a person who has participated in proceedings, although not on the record, may be considered to be a party: Law Society of New South Wales v Jackson (1981) 1 NSWLR 630 and Re Bauhaus Pyrmont Pty Limited (in liq) [2006] NSWSC 879 per Austin J at [12]. However, no such participation is relied upon in this case. 67 In Jackson (supra), Samuels JA (with whom Reynolds and Mahoney JJA agreed) said, at 735:- "A party, essentially, is a person who takes part in legal proceedings, and that is the definition to be found in Jowitt's Dictionary of English Law, at p 1302. It cannot reasonably be doubted that the council took part in these proceedings." 68 In Bauhaus (supra), Austin J at [19] observed that there was no general definition of "party" in the Civil Procedure Act comparable to the definition in s.19 of the Supreme Court Act. The definition of "party" in s.21 of the Interpretation Act 1987, his Honour observed, is unhelpful, although noting that the relevant provisions of the Civil Procedure Act are otherwise very similar to the provisions of the Supreme Court Act. 69 His Honour also observed that s.98 is not materially different from s.76 of the old Act, and Rule 42.3 is not materially different from Part 52A Rule 4. In that case, the liquidator had caused examination summonses to be issued against various executives in the Multiplex Group, including the Chief Executive Officer, Andrew Roberts, referred as "the Roberts parties". The Roberts parties had filed an interlocutory process seeking to set aside the issue of the examination summonses and to remove the liquidator. Austin J observed that the terms of s.22 and the definition of "claimed relief" and the absence of a definition of "party" was a matter of no consequence as the Roberts parties were parties to the proceedings as examinees and, therefore, were defendants (namely, persons against whom proceedings were commenced, according to the definition of "defendant" in s.3(1)). 70 In Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited & Ors [2008] NSWCA 283, Gyles AJA (with whom Giles and Tobias JJA agreed) stated in relation to Uniform Civil Procedure Rules 42.3:- "72. … The general rule is now that there is no power to order costs against a third party and the circumstances under which such an order can be made are delineated by the present rule not by judicial exegesis as to the previous law. 73. The judgment of Mason CJ and Deane J in Knight does, however, give a clue to the provenance of Rule 42.3(2)(c) …" 71 A little later, his Honour further observed:- "74. … it is clear enough that the drafting of UCPR Rule 43.2 is inconsistent with there being any general principle that the jurisdiction can now be exercised against persons who are considered to be the 'real parties'." 72 The decision in Rickard (supra) emphasises the need, in relation to the operation of Uniform Civil Procedure Rules, Part 42.3(1), to ensure that a particular case falls within a specified exception in Part 43.2(2).

Consideration 73 The principles to which I have referred require the applicants to establish a statutory power in the Court to order Ms Roth, as plaintiff in the Roth proceedings, to pay the costs of her CTP insurer and the RTA in the Vedric proceedings. 74 The application made on behalf of the CTP insurer of Ms Roth proceeds upon the basis that it, the CTP insurer, is or is to be considered a party to the Vedric proceedings. It also proceeds upon the basis that the Court has the power to order Ms Roth, as plaintiff in the Roth proceedings, to pay the costs of the CTP insurer and the RTA in the Vedric proceedings. 75 The first question, whether the CTP insurer may be regarded as a party in the Roth proceedings received extremely brief attention during the course of submissions and I will return to it below. 76 In relation to the second issue, the power of the Court requires a determination of the extent of the Court's powers to order costs as conferred by the provisions to which I have referred, namely, s.98 of the Civil Procedure Act and Rule 42.3 of the Uniform Civil Procedure Rules. In that respect, Mr Rewell primarily relied upon the provisions of Rule 42.3(2)(b). 77 Rule 42.3(1) limits the Court in exercising its powers and discretions under s.98 of the Civil Procedure Act to making orders against a party, subject to the exceptions stated in Rule 42.3(2). 78 The provisions of that Rule do not, in my opinion, provide a power in the Court to make an order against Ms Roth, as plaintiff in the Roth proceedings, to pay the costs of the CTP insurer and the RTA as parties to the Vedric proceedings. The provisions of Rule 42.3(2)(b) are premised upon two matters:-

(1) That at the time of the determination of an application for an order for costs, an order has been made or a judgment given by the Court in proceedings. As to this, Mr Rewell was unable to identify and there is no evidence of any judgment or order having been made prior to the date of the application against or binding Ms Roth.

(2) That Ms Roth had failed to comply with any such order or judgment. There was no evidence and no attempt to prove or suggest that there had been any occasion when Ms Roth had failed to comply with an order or judgment. 79 The application for an adjournment made on Ms Roth's behalf on 16 May 2005 was made in relation to the proceedings commenced by her in which she sought damages for personal injury (No 20256 of 2005). Ms Roth, of course, did not apply for an adjournment of any of the Vedric proceedings. The adjournment of the latter proceedings may be said to have arisen out of the perceived need for an adjournment based upon the estoppel point to which Ms Adamson had drawn attention. That arose in the context in which the parties to all proceedings had adopted the course of having them listed and heard together. 80 The present application, in effect, seeks that the Court make an order against Ms Roth, not as a party to the Vedric proceedings, but as a non-party. In the circumstances to which I have earlier referred, the application seeks the making of a costs order that is beyond the power of the Court under the Uniform Civil Procedure Rules, Rule 42.3(2). 81 Apart from the issue of jurisdiction or power to make the order sought, I also observe that the fact that there may have been potentially scope for the operation of an extended Anshun estoppel, as outlined by Mr Rewell in his submissions, would not, in any event, in my opinion, establish a basis for an order against Ms Roth as sought on behalf of the CTP insurer and the RTA. That, as I have indicated, may have been a consequence of the fact that proceedings in respect of which no consolidation order had been made were all, by consent, listed together on the one hearing date. 82 Whether or not the position may have been different had all of the proceedings in the District Court been the subject of a consolidation order is a matter that has not been pursued and, in any event, need not be considered for the purpose of the present application. 83 Accordingly, in the unusual circumstances of the matter, I do not consider that this Court has power to make the order sought. 84 For completeness, I will deal with the question as to whether the CTP insurer of Ms Roth's vehicle may be considered to be "a party" to the Vedric proceedings. 85 In order to circumvent the impossible circumstance in which one of the applicants, namely, Ms Roth, a defendant in the Vedric proceedings, was effectively seeking a costs order against herself in her capacity as a plaintiff, Mr Rewell relied upon the fact that, in her capacity as defendant, her interests fell to the CTP insurer of her vehicle for whom Mr Rewell acted. In that respect, he stated:- "… the courts have now long recognised that where a CTP insurer stands behind the name of a certain party then, in effect, the insurer is to be regarded as the party …" 86 There was no authority cited to support that general proposition, although Mr Rewell cited, in passing the decision in Van Eeden v Henry [2005] NSWCA 14 as an example. I do not consider that the point as to whether an insurer is to be regarded as a party to proceedings was considered in that case. In the Vedric proceedings, brought by Sabina Vedric, by her next friend Snjezana Vedric, the CTP insurer was plainly acting under the terms of the compulsory policy. In Petrie v Linsley (1995) 21 MVR 413, the Supreme Court of Victoria (Eames J) considered the legal position as to the status of an insurer when pursuing a property damage claim in the name of its insured and whilst exercising its rights of subrogation. The position as stated in Insurance in Australia, by Kenneth Sutton, 2nd ed (1991) at 902-903 was said to accurately summarise the position. The learned author of that work, inter alia, in addressing insurers' rights of subrogation, stated:- "… The insurer has no right at law to make use of the name of the assured and if the assured does not consent to lend his name to the action on tender of a proper indemnity as costs, the insurer must go to equity to compel him to allow the use of his name. The court of equity can impose such terms as it thinks fit, such as giving security for costs. In practice, the insurer will bring an action against both the assured and the wrong-doer seeking an order to compel the assured to authorise him to proceeding with the subrogated claim at the same time. An alternative approach is for the insurer to insert a clause in the policy giving him an unfettered right to the use of the assured's name in litigation for subrogation purposes, and this would exclude the application of the normal rules of subrogation unless there was ambiguity. In the absence of assignment, however, the law ignores the fact that the insurer is the real plaintiff where he exercises rights of subrogation, and in the action against the wrong-doer it is the assured who obtains judgment which is satisfied by payment to him ." (emphasis added) 87 The present case is not concerned, of course, with proceedings brought by an insurer for recovery of damages against a third party. It is simply a case of a compulsory third party insurer indemnifying Ms Roth as its insured in proceedings against her. In so doing, in my opinion, the CTP insurer does not thereby become a "party" to the proceedings. 88 It is unnecessary to further examine this point as it was not the subject of any detailed argument nor was any authority cited to support the proposition that the CTP insurer was "a party". The application, for reasons earlier stated, fails upon the basis of an absence of power to make an order as sought. 89 For the above reasons, I consider that the application for costs against the plaintiff, Ms Roth, should be dismissed. 90 Mr Toomey sought an order for costs in his favour in relation to the application for costs. 91 Mr Rewell, in his submissions, contended, inter alia, that on no account should the plaintiff have the costs of the present application. He stated that the Court's discretion as to costs should be exercised having regard to the fact that the adjournment brought about by the plaintiff's application effectively resulted in the Vedric proceedings also being adjournment. He argued that in that regard his client was "entirely blameless, an adjournment which was entirely provoked by the conduct of Mr Toomey's client" (transcript 28 October 2008, p.14). Accordingly, he contended that on no account should the Court "reward" Ms Roth in respect of any order for costs. In the event that the application failed by reason of the limited scope of the rules, then he contended that each party should pay her/its own costs of the application. 92 In response, Mr Toomey replied that, in seeking costs of the application, the plaintiff was not asking for "a reward". The application required Mrs Roth to attend and to be represented. He contended that his client would be entitled to the costs of meeting the application. 93 I do not repeat the circumstances which led to the application for an adjournment being made before Hughes DCJ, as I have already referred to these in brief. That application had the unfortunate practical consequence of an adjournment of the proceedings in which Mr Rewell appeared. Whilst the costs follow the event rule is one of general application, I consider that, the unusual circumstances in which the present application has arisen provides a relevant background or context in which costs of the present application are to be considered. 94 Having taken all such matters into account, I consider that the appropriate order is that each party pay her/its own costs of the application, and I so order. **********

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CITATION : ROTH v RTA & ORS [2009] NSWSC 295

Garnett v Bradley (1878) 3 AC 944 Knight v FP Special Assets Limited (1992) 174 CLR 178 Law Society of New South Wales v Jackson (1981) 1 NSWLR 630 O'Halloran v Roth [2008] NSWCA 65 Re Bauhaus Pyrmont Pty Limited (in liq) [2006] NSWSC 879 CASES CITED : Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited & Ors [2008] NSWCA 283 Petrie v Linsley (1995) 21 MVR 413 Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198 Roth v RTA & Ors [2007] NSWSC 128 Van Eeden v Henry [2005] NSWCA 14 Wentworth v Wentworth (2001) 52 NSWLR 602

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