In each of these proceedings the defendant, who is a medical practitioner, filed a notice of motion seeking orders excluding two medical reports served by the plaintiffs. The first report was that of Dr Milder, which the defendant sought to exclude on the basis that Dr Milder lacked the necessary expertise to express the opinions contained in that report. The second was that of Dr Webster, which the defendant sought to exclude on the basis that it had been served outside of the time limits prescribed by the Uniform Civil Procedure Rules 2005 ("the Rules").
The hearing of the motion commenced on 23 October 2017. However shortly after the commencement of the hearing, it became apparent that the evidence filed on behalf of the plaintiffs was deficient, necessitating counsel to seek an adjournment in order to rectify those deficiencies. The hearing of the motion was adjourned until 29 November 2017.
On 15 December 2017, I dismissed the defendant's notice of motion: Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724. At the time of delivering judgment, I ordered that in the absence of agreement, each party should provide short written submissions as to the question of costs. This judgment deals with that issue.
[2]
Submissions of the plaintiffs
Sandra Battersby v Allan; Darrel Battersby v Allan [2018] NSWSC 98 | Case summary | Zoe
The plaintiffs principally on the fact that the defendant had been unsuccessful in its motion. It was submitted that in these circumstances, costs should follow the event.
However, the plaintiffs also relied upon fact that during the course of the adjournment of the proceedings, they had offered to resolve the issues arising on the motion. The terms of that offer, which was expressed to be made according to the principles in Calderbank v Calderbank [1975] 3 All E R 333, essentially reflected the decision to which I ultimately came. Relevantly however, the plaintiffs offered that costs be costs in the cause.
In these circumstances, it was submitted that I should order that:
1. the costs up to 27 September 2017 be costs in the cause;
2. the defendant pay the plaintiffs' costs after 28 September 2017 on an indemnity basis, or alternatively on the ordinary basis.
[3]
Submissions of the defendant
The defendant submitted that notwithstanding that the notice of motion had been dismissed, the general principle that costs follow the event should not apply. In support of that proposition, counsel for the defendant made the following submissions.
Firstly, counsel pointed out that the failure of the plaintiffs to properly address the evidence prior to the first day of the hearing had necessitated an application for an adjournment of the hearing of the motion. Whilst acknowledging that no objection was taken to that application, counsel submitted that such adjournment nevertheless represented an indulgence granted to the plaintiffs. It was submitted that such adjournment resulted in the plaintiffs filing a further three lengthy affidavits which established that those acting for the plaintiffs had made a number of deliberate forensic decisions in relation to obtaining relevant medical evidence which, in part, had resulted in the report of Dr Webster being served out of time.
Secondly, it was submitted that there had been a complete indifference on behalf of those acting for the plaintiffs to the requirements of the Rules, and previous directions and orders of the Court, regarding the service of expert evidence. This, it was submitted, resulted in the plaintiffs having to seek a further indulgence from the Court so as to be permitted to rely upon the report of Dr Webster.
It was submitted that in all of the circumstances I should order that:
1. the plaintiffs pay the costs of the defendant thrown away by reason of the adjournment of the hearing of the notice of motion;
2. the plaintiffs pay the defendant's costs of the second day of the notice of motion; and
3. otherwise, each party pay their own costs.
[4]
Consideration
Rule 42.1 of the Rules is in the following terms:
42.1 General rule that costs follow the event
Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
Further, s 98 of the Civil Procedure Act 2005 (NSW) is in the following terms:
98 Courts powers as to costs
(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.
(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:
(a) costs up to, or from, a specified stage of the proceedings, or
(b) a specified proportion of the assessed costs, or
(c) a specified gross sum instead of assessed costs, or
(d) such proportion of the assessed costs as does not exceed a specified amount.
(5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996.
(6) In this section, costs include:
(a) the costs of the administration of any estate or trust, and
(b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and
(c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed.
In the present case, the defendant was unsuccessful in obtaining the orders which had been sought in the motion. However in my view, there are proper bases to depart from the general rule set out in r 42.1.
Firstly, as I have previously noted, the hearing of the motion first came before me on 23 October 2017. It would normally have been completed well within that day. The fact that it was not was due solely to a lack of preparation on the part of the plaintiffs' solicitors. The adjournment was necessary to give them an opportunity to overcome a number of evidentiary shortcomings. The extent of those shortcomings can be gauged by the fact that a number of lengthy affidavits were then served. In these circumstances, there is no reason why the plaintiffs should not pay the costs of the defendant which have been thrown away as a consequence of that adjournment.
Secondly, although the defendant was ultimately unsuccessful in obtaining the orders sought in the motion, the plaintiffs have been granted an indulgence by the Court in being permitted to rely upon expert evidence which was served substantially outside of the period stipulated in the Rules. As I observed in my previous judgment at [74], it was the late service of the report of Dr Webster which necessitated the plaintiffs seeking such indulgence. That late service was brought about by the wholly unsatisfactory manner in which the case had been prepared by the plaintiffs' solicitors. I also observed in my judgment (at [75]-[76]) that quite apart from a failure to comply with the Rules, the report of Dr Webster had been served in complete disregard to a number of orders made in the District Court regarding the service of medical evidence. Whilst the making of an order for costs is compensatory and not punitive (as to which see Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ) these factors are nevertheless relevant to the exercise of my discretion. As far as the plaintiffs' offer is concerned, it reflected no real element of compromise at all. In substance, it offered to resolve the matter on the basis of the orders which were subsequently made.
In all of these circumstances, and save for the costs thrown away by the adjournment of the proceedings, this is a case in which each party should bear its own costs.
[5]
Orders
I make the following orders:
1. The plaintiffs are to pay the costs of the defendant thrown away by reason of the adjournment of the defendant's motion on 23 October 2017.
2. The parties are to otherwise pay their own costs of the motion.
[6]
Amendments
20 February 2018 - Correction to date on coversheet and [17]
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Decision last updated: 20 February 2018