Strange v Turnbull

Plaintiff's submissions

1. The plaintiff referred to s 98 of the Civil Procedure Act 2005 (NSW) which provides, relevantly: "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. Reference was also made to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): "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." (Emphasis added)
3. While acknowledging that "prima facie the defendants were successful in defending the application with respect to the causes of action other than negligence", the plaintiff contends that the appropriate costs order is, alternatively: (a) the defendant pays the plaintiff's costs (on a solicitor/client or indemnity basis), or (b) there be no order as to costs.
4. The submissions for the plaintiff referred to [37] of the primary judgment: "The prospect of an expert psychiatric opinion becoming available that might bear upon Mr Turnbull's state of mind must be acknowledged. The prospect of it bearing upon his state of mind in some way relevant to the quite minimal requirement for the plaintiff to establish the deliberateness of Mr Turnbull's actions directed towards Mr Strange seems at the moment to be remote. In the submissions for the plaintiff, this contention was described as a "last moment ambush" of the present application (T21.25). There appears to be some force in this as there is presently nothing in the pleaded defence that raises an issue of impairment."
5. The reference to "Mr Turnbull's state of mind" related to a submission made by senior counsel for the defendant that there was an issue about Mr Turnbull's capacity to form the relevant intention for the intentional torts (the primary judgment at [30]). It was submitted, in effect, this was the triable issue. However, as the plaintiff's submissions noted, it had not been pleaded in the Further Amended Defence and was only ambiguously referred to in Mr Turnbull's evidentiary statement.
6. At the hearing on 28 September 2017, senior counsel for the defendant indicated that a report by Professor Greenberg had been sought. The report was since obtained and it was served upon the plaintiffs on 19 October 2017. Professor Greenberg indicated therein that he was instructed by letters dated 1 August 2017.
7. The plaintiff's notice of motion seeking summary judgment was filed on 16 August 2017. The plaintiff's solicitors had not been put on notice and had no expectation that the defendant's solicitors intended to obtain further expert material dealing with the issue of "intention". It raises an entirely new issue.
8. In these circumstances, the plaintiff submits that had the defendant's solicitors served the report by Professor Greenberg prior to the hearing of the notice of motion, and pleaded the "intention" issue in the Further Amended Defence, then such material evidence and pleading would have presented an obvious triable issue.
9. It was submitted that the defendant's conduct amounted to an ambush and delinquency which did not conform with ss 56, 57 and 58 of the Civil Procedure Act. This justified the making of "some other order" as to costs (UCPR r 42.1). Costs on a solicitor/client or indemnity basis were said to be justified because of the delinquency in pleading, not serving the evidence in support of the "intention" issue for the purposes of the notice of motion, or prior to it, and raising these matters in the form of ambush during the course of oral submissions at the hearing.

Consideration

1. In the written submissions for the defendant it was impliedly suggested that there was significance in the motion seeking summary judgment "based upon the cause of action pleaded in either negligence, or assault, or false imprisonment" (original emphasis). However, the meaning was plain enough from the written submissions for the plaintiff served before the hearing and it was clarified at an early stage of the hearing. The argument at the hearing proceeded upon the understanding that the plaintiff was seeking summary judgment in respect of each, alternatively one or more, of the causes in action. I do not see any significance in this.
2. I am satisfied that it was perfectly justifiable for the plaintiff to apply for summary judgment having regard to the content of the pleadings and the evidentiary statements of Mr Strange and Mr Turnbull. However, in respect of the intentional torts, the application failed for two reasons.
3. The first reason related to the claim in Mr Turnbull's evidentiary statement that he had no intention to harm Mr Strange: "I had no intention of causing any harm, injury or death to Mr Strange." And: "[I]t was not my intention to harm Mr Strange in any way..."
4. In context, this was (understandably, in my view) construed as a claim that he had no intention to cause physical harm. However, Mr Alexis SC argued that it could also be construed as a claim that Mr Turnbull had no intention to cause mental as well as physical harm: the primary judgment at [25]-[26]. I described (at [34] and [39]) this construction as "rather remote" and "seemingly tenuous". If, in responding to the intentional tort claims, Mr Turnbull had intended to say that he had no intention of causing Mr Strange any mental harm, as well as any physical harm, one would expect it to have appeared in his evidentiary statement. If this is truly what Mr Turnbull had intended to convey, the evidentiary statement was poorly drafted in that respect.
5. The second reason was the prospect of an expert psychiatric opinion becoming available that might bear upon Mr Turnbull's state of mind. In the primary judgment (at [37]) I described the prospect of this bearing on the relevant issue as remote.
6. The plaintiff was first notified of this second matter in the course of oral submissions at the hearing of the application. Senior counsel for the plaintiff had good cause to describe this as "a last moment ambush". There was no suggestion in the Further Amended Defence of any such issue being raised.
7. In short, acceptance of there being a triable issue so as to deny the plaintiff summary judgment rested upon there being a poorly drafted evidentiary statement and a hitherto unpleaded (or otherwise notified to the plaintiff) issue that rested upon a possibility of an expert opinion becoming available that might supporting a contention about Mr Turnbull's state of mind.
8. I acknowledge that the defendant was successful in defeating the application for summary judgment on the two causes of action that remained in issue and that costs would ordinarily follow. However, for the foregoing reasons I am of the view that the more just result would be for there to be no order as to costs.

Order

1. There is to be no order as to costs in relation to the notice of motion for summary judgment filed on 16 August 2017.

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