S v State of New South Wales

CASES CITED : S v State of New South Wales [2008] NSWSC 933

PARTIES : S (Plaintiff) State of New South Wales (Defendant)

COUNSEL : D M Shoebridge (Plaintiff) P D A Mallon (Defendant)

SOLICITORS : Edwards Michael (Plaintiff) I V Knight, Crown Solicitor (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 My reasons for judgment in this matter were published on 9 September 2008: see S v State of New South Wales [2008] NSWSC 933. I gave a verdict for the defendant and indicated that I would hear the parties on the question of costs. On 16 October 2008 the matter came back before me for argument on that issue. 2 The defendant relied upon an affidavit of Margaret Anne Bateman affirmed on 14 October 2008 in support of the submission that the plaintiff should be ordered to pay the defendant's costs on the usual basis up to and including 23 November 2006, but thereafter upon an indemnity basis. That submission was based upon the service of an offer of compromise dated 21 November 2006, served on the plaintiff on 23 November 2006, that proposed a settlement of the proceedings upon the basis of the payment of $150,000 to the plaintiff plus costs. That offer was expressed to be open for a period of 28 days but was never accepted. The defendant also served further offers of compromise upon the plaintiff but these were also not accepted. For presently relevant purposes only the first offer of compromise is of any significance. 3 It is obvious that the plaintiff did no better than the first offer of compromise. It is accepted by the plaintiff that the defendant has complied with the rules and has otherwise formally established the matters that would entitle it to an order for indemnity costs on and from 24 November 2006. The plaintiff does not concede that such an order is inevitable or that it should be made at all, but otherwise makes no submissions about it. Rather, the plaintiff submits that the scope of any order for costs that I may make should be limited having regard to the following matters. 4 First, the plaintiff contends that any order for costs that I might make in favour of the defendant should not include the costs referable to what I will call the limitation issue but that instead the defendant should pay the plaintiff's costs of this issue. This is said to be for the reason that the plaintiff succeeded in establishing that her medical condition was such that she was so disabled for a period by reason of her psychiatric or psychological condition that time ceased to run against her. The plaintiff submits that even though I made an order extending the time within which the plaintiff was entitled to commence the proceedings, such an order was in fact strictly unnecessary as the other findings that I have made make it clear that the date of filing of the original statement of claim was within time, which had ceased to run. The distinction would not ordinarily be particularly significant but may be for present purposes having regard to the way in which the plaintiff puts her case on the costs issue. 5 The plaintiff's submission is that the costs that were generated by the defence that put the limitation issue in dispute were unnecessary and occasioned by a failure on the defendant's part correctly to assess the medical evidence touching this issue upon which the plaintiff relied. In other words, this was not a case in which a discretion needed to be exercised to extend time because the medical evidence revealed from early on that the plaintiff was under a disability and therefore not in the position of a potentially recalcitrant plaintiff whose failure to commence proceedings within time required an explanation and acceptance by the Court. 6 The defendant submits that in the ordinary course an applicant for an extension of time would be required to pay the costs of such an application unless the applicant can show that a respondent's opposition to it was unreasonable. The defendant contends that in the circumstances of this case the commencement of proceedings was on its face out of time having regard to the notional date of crystallisation of the plaintiff's cause of action in 1999 following the events of Operation Rhino in Orange that year. Accordingly it was not unreasonable for the defendant to plead the limitation issue in its defence. Upon the basis of this analysis the defendant contends that either no special order for costs should be made and that costs of the limitation issue should simply follow the event of the proceedings generally. 7 As I have earlier indicated at par [311] of the principal judgment, the proceedings were effectively commenced on 13 July 2004. The plaintiff filed a notice of motion seeking clarification of the limitation issue as soon thereafter as 1 June 2005. The report of Dr Selwyn-Smith dated 6 April 2004 expressed the opinion that the plaintiff had been significantly impeded in the management of her affairs since the time of the Orange incident. I have found that the plaintiff was under a relevant disability so that the time within which she was required to commence these proceedings ceased to run. The plaintiff succeeded in establishing in effect that she did not need an extension of time for the commencement of the proceedings at all. In those circumstances I consider that the defendant should pay the plaintiff's costs incurred with respect to the limitation issue. 8 Secondly the plaintiff sought an order that the defendant pay her costs of and incidental to what can be described as the Dr Champion issue. This derived from evidence upon which the defendant foreshadowed it intended to rely that the plaintiff's medical condition was the result of circumstances flowing from the birth of her twins and not from anything connected to her employment by the defendant. The defendant ultimately abandoned this issue when the causal connection between the plaintiff's medical condition and her work was conceded. 9 The debate was to some extent clouded by the plaintiff's arguments that the defendant was somehow estopped from denying that the proceedings were commenced within time by the events that led to the plaintiff being declared medically unfit and hurt on duty. The defendant argued that this went only as far as a potential admission on the narrow issue and that the plaintiff's motion for a declaration that it was not open to the defendant to assert or to adduce evidence in the proceedings to the effect that the injury to the plaintiff that rendered her unable to fulfil her duties as a police officer was not sustained in the course of those duties was never likely to succeed. In my opinion, this was a false issue. 10 As my judgment in the principal proceedings makes clear, the defendant conceded that the plaintiff's injuries were caused by or at least materially contributed to by her exposure to undercover work in the employment of the defendant. In the events that occurred, I also formed the view that that result would have followed even in the absence of the defendant's concession. The principal dispute between the parties ultimately centred on other more arcane legal issues. The concession was insufficient by itself to dispose of the proceedings but in advance of the defendant's concession it was necessary for the plaintiff to establish as a preliminary issue that she was injured as a result of the work she performed. The plaintiff was in these circumstances put to the expense of preparing a case that included the marshalling of evidence on this point, which the defendant did not finally dispute. In the circumstances I consider that the plaintiff should have her costs of this issue. 11 In all other respects I consider that the plaintiff should pay the defendant's costs of the proceedings as described below in more detail. 12 Some further matters require mention. The judgment that I delivered in the principal proceedings referred to the fact that further submissions would be required on the question of the plaintiff's claim for and entitlement to damages for care. I am reliably informed by Mr Shoebridge of counsel for the plaintiff that she proposes to appeal to the Court of Appeal. Against that contingency I assessed the plaintiff's damages with the exception of the care component. 13 I was concerned to know whether the plaintiff's appeal to the Court of Appeal would extend to the damages that I have assessed. I am also now informed that it will not. In those circumstances it seems to me to be preferable to postpone the argument and my determination on the question of care until such time as the plaintiff's appeal has been heard. If the plaintiff is successful in the Court of Appeal then that matter can return to me for completion if it is not otherwise capable of agreement between the parties. In the event that that the plaintiff's appeal is unsuccessful, the issue will not require further attention. In this way the parties have the opportunity to avoid the incurring of what may turn out to be wasted or unnecessary costs. I note that both parties are in agreement with this proposal. 14 Finally I am informed by counsel for the parties that since the date of my decision the statutory amount for non-economic loss has been adjusted in accordance with the CPI. The plaintiff contends that she is entitled to the increase, as my final decision (including costs) will not have been made until after the increase takes effect. The defendant argues that my decision on 9 September 2008 amounted to a final decision on the question of the plaintiff's damages and that the sum that applied to that issue at that time is the relevant sum. 15 The defendant is correct. The verdict for the defendant disposed of the proceedings. The direction that I made for the preparation of short minutes was made as a matter of convenience only and had no other substantive effect or result. The sum described in the short minutes of order with which the defendant has provided me accurately reflects the damages that I have assessed. I will initial those short minutes of order, date them with the date of the argument on the issue before me (16 October 2008) and place them with the Court papers. Orders 16 In these circumstances I make the following orders: 1. Order that the defendant pay the plaintiff's costs of and incidental to the limitation issue and the Dr Champion issue.

2. Order that the plaintiff otherwise pay the defendant's costs up to and including 23 November 2006 on a party/party basis and that the plaintiff pay the defendant's costs on and from 24 November 2006 on an indemnity basis.

3. I note: (a) the parties have brought in short minutes of order to reflect my findings on the plaintiff's damages, and

(b) the parties are agreed that my determination of the plaintiff's entitlement to damages for care (if any) should await the outcome of the plaintiff's appeal to the Court of Appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.