White v Lachlan Shire Council

District Court of NSW|2017-05-04

Judgment

This is an application made pursuant to s 98(1) of the Civil Procedure Act 2005, whereby the defendant seeks a wasted costs order against the plaintiff.
The application follows leave given to the plaintiff to further amend and expand his claim against the defendant on grounds that the dictates of justice required such amendments.
The defendant now seeks an order that its consequential wasted costs, which it calculates in the sum of $124,057.74, be paid by the plaintiff forthwith, on the indemnity basis.
The context of the defendant's application is that it has much about which to complain concerning the manner in which the plaintiff's case has unfolded, including with regard to the plaintiff's approach to interlocutory and procedural matters.
The application was heard on 4 May 2017 and judgment was reserved. On 9 May 2017 the parties requested that a decision on the motion be deferred pending settlement discussions. Those discussions have failed to resolve the matter. I now publish my reasons for decision on the costs issue.

Pleadings history

The history of the successive pleadings in the case is as follows: 1. The plaintiff's original statement of claim was filed on 12 March 2015. Although it raised claims in nuisance and negligence, and included particulars (a) to (e) of the damages that were claimed to have been incurred by the plaintiff, that statement of claim had some deficiencies. On 8 April 2015, the defendant filed its defence to that statement of claim. On 18 September 2015, the defendant filed an amended defence to that statement of claim; 2. An amended statement of claim was filed on behalf of the plaintiff on 6 May 2016. It added 3 new paragraphs that particularised the claimed nuisance (paragraph 10), it added an allegation that a duty of care was owed (paragraphs 11A and 11B), and it particularised further allegations of negligence in sub-paragraphs (a) to (g). On 7 June 2016, the defendant filed its further amended defence to the plaintiff's amended statement of claim; 3. Pursuant to leave granted, following a contested application, a further amended statement of claim was filed on behalf of the plaintiff on 2 November 2016. That further amended statement of claim had the effect of adding: 1. new paragraph 9A (which raised additional factual matters identifying a historical complaint made by the plaintiff to the defendant in November 2005); 2. a structural heading identifying "NUISANCE"; 3. new paragraphs 10A, 10B and 10C, which recast the previously pleaded claim of nuisance; 4. a structural heading identifying "NEGLIGENCE"; 5. new paragraphs 11A, 11B, 11C, 11D and 11E, which raised formulations of the duty of care claimed to have been owed by the defendant, together with matters that are the subject of s 5B(1) of the Civil Liability Act 2002; 6. expanded particularisation of the claims of negligence by adding particulars (h) to (i); 7. a new paragraph 12A which set out some further particulars of alleged admissions made by the defendant; 8. a new paragraph 13A, which expanded the plaintiff's claim for damages; 9. a structural heading was added identifying a claim of alleged asbestos contamination in an area that is adjacent to the plaintiff's land. 1. On 8 December 2016, the defendant filed its second further amended defence to the plaintiff's further amended statement of claim that was filed on 2 November 2016. The result of the filing of that amended defence is that many factual and legal issues remained to be determined in these proceedings. It is not necessary to further identify those matters in these reasons, other than to say that the contested factual and legal issues in the case have been significantly expanded.
The described amendments were made in the context of a hearing where the pre-trial estimate for the time that was required to complete the hearing was expanding significantly. That expansion, which was a necessary consequence of the orders for amendment according to the dictates of justice, was well beyond what could be ordinarily considered as being acceptable variations due to the accidents of litigation, the additional costs of which the respective parties would ordinarily be expected to have to meet and absorb.

Relevant procedural events providing context to the amendments

In addition to the above chronology by which the pleadings have evolved, the present application by the defendant for compensation for wasted costs must be viewed in the overall procedural and case management context, which involved many listings, as follows: 1. On 12 May 2015, the parties attended a case management hearing convened before the Judicial Registrar, at which time procedural orders were made in accordance with agreed short minutes, which identified a timetable for the provision of particulars of the claim, an amended defence, a view of the plaintiff's land by an expert, a timetable which required the service of the plaintiff's expert evidence on liability and damages, by 11 August 2015, and provision for the service of the defendant's expert evidence on liability and damages in reply. A status conference was then appointed for 16 September 2015; 2. On 16 September 2015, at a status conference convened before the Judicial Registrar, the parties indicated readiness for hearing, and consequently, a hearing date was set for 9 May 2016, with an allocated estimate of 4 days. At that time, the defendant was required to file an amended defence by 30 September 2015, and the plaintiff was required to serve evidence in reply by 21 February 2016. The parties were also ordered to undertake an informal settlement conference by 1 April 2016. In hindsight, that estimate of 4 days for the hearing was unrealistic and inadequate to accommodate the issues the parties were intent on litigating; 3. On 20 January 2016, at the request of the parties, the Judicial Registrar made consent orders concerning further preparatory steps. Those orders made adjustments to the timetable for service of expert reports and required the parties to undertake an informal settlement conference by 30 April 2016, with a further status conference scheduled to take place on 3 May 2016; 4. On 19 April 2016, procedural orders were made by the Assistant Registrar for the issue of subpoenas and substituted service in relation to a witness; 5. On 3 May 2016, the parties appeared, by counsel, before the List Judge, for the purposes of a motion filed on 2 May 2016 which sought to vacate the hearing date already fixed for 9 May 2016. That fixture was then vacated, and a new hearing date was set to commence on 20 June 2016, with an estimate of 5 days. In hindsight, that estimate was also unrealistic having regard to the issues to be litigated. Consent orders were then made to the effect that the plaintiff file and serve an amended statement of claim, provision was also made concerning the request and the supply of particulars, the filing of an amended defence, and for the plaintiff to prepare a chronology, and a statement of issues. The Court's Standard Orders were also issued at that time. The result of the motion determined on 3 May 2016 was that the plaintiff was required to pay the defendant's costs of the motion; 6. On 20 June 2016, the hearing of the substantive case commenced before me. It proceeded over the course of 6 days, on 20, 21, 22, 23, 27 and 30 June 2016. During that hearing, it became increasingly apparent that the time allocated for the hearing was grossly insufficient, and that not all of the elements of the case were ready for determination on the merits. A salvage of the hearing to that date became necessary. An order was therefore made pursuant to UCPR r 28.2 separating the determination of the liability issues from the damages issues, and because of other listing arrangements, the further hearing of the remaining liability case was stood over part-heard to 9 and 10 February 2017, noting that expert evidence from the liability experts had not yet been tendered; 7. Subsequently, an opportunity emerged to bring the adjourned hearing forward to 27 and 28 October 2016 because of an early settlement in another case that was listed on those dates; 8. On 10 August 2016, the plaintiff filed a notice of motion seeking leave to further amend the amended statement of claim filed on 6 May 2016; 9. On 30 September 2016, pursuant to s 64 of the Civil Procedure Act 2005, the plaintiff's motion filed on 10 August 2016 seeking leave to further amend the pleadings was determined. The plaintiff was granted leave to further amend his amended statement of claim. The hearing dates that had been re-fixed for 27 and 28 October 2016 were then vacated. 10. Also on 30 September 2016, pursuant to s 26 of the Civil Procedure Act 2005, the parties were required to reconvene a previously unsuccessful attempt at mediation, in an endeavour to seek an alternative means of resolving the proceedings. Costs of the two motions determined on this date were reserved so as to not over-complicate the progress of that mediation. At that time, the proceedings were listed for a further directions hearing fixed for 9 December 2016; 11. On 9 December 2016, at the scheduled directions hearing, orders were made in accordance with short minutes filed on that date and which provided for further preparatory steps to be undertaken. At that time, the hearing dates for the liability case were fixed to resume on 11 September 2017 for 7 days. A further directions hearing was fixed for 21 August 2017. That date was selected for the purpose of reviewing the progress of work of the parties in readying the case for that resumed hearing; 12. On 17 February 2017, a further directions hearing took place to vary some previous case management orders made on 9 December 2016 in view of some matters that had occurred, and which had resulted in some slippage in the preparation timetable. Further case management orders were then made by consent in accordance with further short minutes filed on that day. A directions hearing that had already been fixed for 21 August 2017 to review readiness for hearing, was confirmed; 13. In the meantime, on 28 March 2017, the court was approached to fix a date to deal with outstanding matters as to costs. A date was then fixed for the hearing of those matters on 31 March 2017. 14. On 31 March 2017, which was the date on which the defendant's present motion seeking a wasted costs order was due to be heard, the plaintiff was not ready to proceed because his counsel had misunderstood the purpose of the listing on that day. The present motion was then stood over for a hearing on 20 April 2017; 15. On 20 April 2017 the costs argument listed for that day was adjourned due to the solicitor for the defendant, whose evidence was required on the motion, being unavailable because of the illness of a family member. The present costs motion was then fixed for hearing on 4 May 2017 and it was heard on that date; 16. The parties have been unable to resolve their disputes despite an informal settlement conference and two mediations.

Evidence in support of application for costs

In support of the application for costs, the applicant defendant relied on 3 affidavits prepared by its solicitor, Mr Mark James Brothers, respectively sworn on 7 December 2016, 24 March 2017, and 1 May 2017, with exhibited annexures. The plaintiff also relied upon an affidavit from Mr Ben Falconer, an engineer who had formerly been employed by the defendant. Mr Falconer's affidavit was sworn on 7 April 2017, and had voluminous exhibited annexures.
The applicant defendant's quantification of the wasted costs came from the combined effect of the successive affidavits of Mr Brothers. The claim for such costs, in the total sum of $124,057.74, was a distillation of the tabulated costs identified by Mr Brothers in those affidavits. The quantified claim was further summarised, with source references, in a series of tables which were embodied in MFI "1" on the costs application.
The plaintiff did not call any evidence on this application to contradict the costs calculations prepared on behalf of the defendant. The tactical position adopted on behalf of the plaintiff, through the cross-examination of Mr Brothers on the content of his affidavits, was to seek to try and undermine those estimates, and to seek to base an argument that the costs claimed were, or would have been, or ought to have been, incurred in any event. That objective did not succeed in any material respect.

Submissions of the parties

This application by the defendant for a wasted costs order is grounded upon an observation I made on 30 September 2016, in the course of determining interlocutory disputes where it became plain that the defendant "had much to complain about" with regard to the manner in which the plaintiff's representatives had conducted this litigation to that point, including with regard to the pleadings.
On behalf of the defendant, it was submitted that the circumstances of the procedural history which have resulted in the plaintiff's changed pleadings justify a gross sum wasted costs order that should be paid forthwith, on an indemnity basis, on the basis of the matters set out in the evidence of Mr Brothers.
On behalf of the plaintiff, it was submitted that in the interests of justice, any costs order to be made as a result of the plaintiff's changed pleadings should only be made after the substantive issues calling for decision in the case have been finally decided. It was further submitted on behalf of the plaintiff that the lack of clarity in the plaintiff's pleadings has now been resolved by amendments, and that this should not be the deciding factor in making costs orders on an interim basis.
The plaintiff's representatives argued that in reality, there are no identifiable wasted costs of the order claimed, and that the defendant should only be awarded the costs of the amendments, and not the consequences thereof.
That submission was further developed to the point of a statement that the costs now being incurred by the defendant as a consequence of the amendments, ought to have been incurred by the defendant at the outset of its investigation of the plaintiff's claim in any event. In that sense, in essence, on behalf of the plaintiff, it was submitted that "no costs can be demonstrated to be thrown away".
In my view, when the plaintiff's series of changed positions in the litigation are tracked, that submission made on behalf of the plaintiff cannot be accepted. In my assessment, those changes justify a wasted costs order to compensate the defendant for the costs that have been thrown away by the procedural conduct and defaults that have arisen on the plaintiff's side of the record.

Legal principles to be applied

The authorities that apply to wasted costs, and payment of those costs on a forthwith basis are summarised as follows.

Generally

Prior to the advent of s 98 of the Civil Procedure Act 2005, which now governs the jurisdiction of the court as to costs generally, the generally accepted position on costs orders has been that a court does not have an unfettered discretion to make any order of choice as to costs. The wide jurisdiction conferred by the discretion as to costs must be exercised judicially: Knight v FP Special Assetts Ltd (1992) 174 CLR 178, at p 192.

Wasted costs

In Hamod v State of NSW [2011] NSWCA 375, at [816], it was held that the combined effect of s 98(4), s 56(1), s 57(1)(d) and s 60 of the Civil Procedure Act 2005 indicated that the factors that merited particular consideration included the relative responsibility of the party for the costs incurred, the degree of any disproportion between the issue litigated and the costs claimed, the complexity of the proceedings in relation to the costs of the proceedings, and the capacity of the unsuccessful party to satisfy any costs liability.
In Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, at [21] - [22], it was held that power of the kind under present review is not confined, and may be exercised whenever the circumstances are warranted, including where an assessment of costs would be protracted and expensive, and where a broad-brush approach can be undertaken having regard to the information before the court, provided the approach taken can confidently proceed on a logical basis that is fair and reasonable. Those statements of principle are most apt to the present application.
The broad-brush approach to gross sum costs can also be applied to indemnity costs where there is an element of otherwise unrecoverable costs that are nevertheless incurred reasonably: James v Phillips (No 2) [2017] NSWSC 257, at [10].

Payability of costs forthwith

In deciding whether, on the basis of the intrinsic facts of the case at hand, there should be a departure from the normal or ordinary rule as to costs payable at the conclusion of proceedings so as to require the costs to be paid before the proceedings conclude, a relevant consideration is whether such claimed costs are self-contained, discrete or detached in nature because of the specific issue to which they relate, compared to the unheard balance of the proceedings: Fiduciary Ltd v Morning Star Research Pty Ltd (2002) 55 NSWLR, at [10] - [13].
Costs that are sought to be paid before the proceedings have concluded must be the subject of an application for the exercise of discretion to that effect, and that discretion must be exercised judicially, having regard to all the circumstances of the case, and in the interests of justice, as explained in Fiduciary Ltd v Morning Star Research Pty Ltd, at [6], [14] - [16]. The process must be according to reasons that are not arbitrary, or capricious, and must not proceed according to private opinion, as explained in House v The King [1936] HCA 40; (1936) 55 CLR 449, at p 503: Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31.
In this context, the reference to the dictates of justice is a reference to the requirements in that regard according to the requirements of s 58 of the Civil Procedure Act 2005 in the context of management of the proceedings: Bellevista v D Tannous Ltd [2010] NSWCA 277, at [37].
Costs orders, including wasted costs orders, whether made against a party or the legal representatives of a party, are designed as a costs sanction to provide compensation for the litigant who has been disadvantaged by the manner in which the litigation has been conducted by the opposing side: Kelly v Jowett [2009] NSWCA 278, at [66] - [68].

Order for costs against third parties to the litigation

As a fundamental proposition, orders providing for the wasted costs of a party to be paid personally by a legal practitioner who acts for a party to the proceedings but who is not a party to the proceedings may be seen as being in the nature of a penalty, and therefore such an approach must proceed with caution, with sound reasons for the exercise of such a discretion, and according to the rules of natural justice or procedural fairness: Lemato v Abel Technical Pty Ltd (2005) 63 NSWLR 300, at [3] - [4]; [91]; [93]; [120], at pp 328 - 329.
There must at least be circumstances which are "out of the ordinary", whether this be an element of abuse of process, ulterior or extraneous purpose, or unreasonableness or a "relevant delinquency on the part of the unsuccessful party", as was considered in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, at [44], where the principle was stated to be that indemnity costs orders are not intended to punish an unsuccessful party, but to compensate for the consequences of delinquency: Styles v Wolondilly Shire Council (No 3) [2001] NSWLEC 133, at [14].
Personal costs orders against a third party (such as a solicitor or a liquidator) are to be made only in exceptional circumstances, such as where misconduct has occurred: Hypec Electronics Pty Ltd (in liquidation) v Mead [2004] NSWCA 221; (2004) 61 NSWLR 169, at [31].

Consideration

On the procedural chronology I have outlined, there can be no doubt that the interlocutory activities of the plaintiff, or the lack thereof, has resulted in the defendant incurring wasted costs for which it should be compensated. The defendant has had to serially address successive changes to the various iterations of the plaintiff's claims, endure the costs effects of adjournments, and revise its strategies for defending the plaintiff's variously changed pleadings and foreshadowed cases. I am satisfied that the defendant has as a result, incurred considerable wasted costs for which it should be compensated.
In approaching this question, it is recognised that an order of the kind sought by the defendant should not be made lightly: McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306.
Having determined that the plaintiff should pay the defendant's costs which have been wasted by reason of the plaintiff's successful application to further amend his statement of claim, which was a considerable indulgence in the circumstances, the consequential consideration arises as to whether those costs should be paid by the plaintiff on the indemnity basis.
I consider this to be a case where the parties should not be put to the expense, delay and inconvenience of a costs assessment on the wasted costs issue. In my view, it is a discrete and encapsulated issue that can be adequately and fairly addressed in a broad-brush approach to quantification without injustice to the parties.
In the circumstances under present review, I consider that to order those costs to be paid on the indemnity basis would have an undue punitive effect rather than fulfilling a compensatory purpose.
Furthermore, in determining costs on a broad-brush gross sum basis, precision is not the aim or intended effect of that approach. An indemnity costs order would have the effect of glossing over potential nuanced arguments about whether particular items were recoverable on a party/party assessment. In reaching this conclusion I do not intend to convey the impression that the defendant has sought to claim any costs that have been unreasonably incurred or unreasonably quantified.
The broad-brush approach I intend to apply glosses over potential arguments of the kind expected to be raised in a contested costs assessment. Given the procedural chronology of this case, I consider that the delay, cost and inconvenience of a costs assessment should be avoided. If the plaintiff's circumstances as described have materially changed since he gave the evidence to which I have referred, so as to justify an application for the deferment of the time for payment of the defendant's costs, I grant liberty to apply for a variation in the order I propose to make as to the time for payment of those costs. I decline to order the wasted costs on the indemnity basis. Instead, I propose a broad-brush discounted lump sum approach to wasted costs.
I am reinforced in my view that the proposed discounted approach is apt in this case because some discounting allowance should be made for the plaintiff's alternative contention that not all of the defendant's claimed costs are wasted. In that regard, for example, it has transpired that following the allowed amendments, in the defendant's renewed search for relevant documents in its possession, Exhibit "P" to the affidavit of Mr Falconer has emerged, and it has now been disclosed. Exhibit "P" identifies relevant factual information that could have a significant bearing on the outcome of the plaintiff's claim. I express no concluded view on that matter. I simply mention it as an example of why some costs incurred by the defendant might not be characterised as being fully wasted. The determination of a costs assessment on that question would itself be a very complicated and costly exercise.
In his evidence, Mr Brothers explained why Exhibit "P" had not been produced on subpoena at an earlier point in time, in circumstances where the procedural remedy of formal discovery had not been pursued by the plaintiff. He explained that the late emergence of Exhibit "P" was because the Council's electronic filing system had undergone a number of changes over time, and the discoverability of this document was dependent upon the knowledge and skill of the person undertaking the search, which it appears from the evidence of Mr Brothers, was an exercise different from simply undertaking a physical search of hard copy documentary archives.
If the plaintiff had access to the document identified by Mr Brothers as Exhibit "P" at an earlier point in time, and had appropriately analysed it in a timely manner, it is reasonable to argue that the plaintiff's pleadings, and perhaps the expert evidence obtained on behalf of the plaintiff, might have taken a different course, and might have assumed a different structure. That said, the procedural and pleadings history of the matter does not necessarily lead to such a conclusion.
The fact that this document has now turned up, although in part as a consequence of the meandering course taken by the plaintiff's pleadings, its previous non-disclosure was not due to fault on the plaintiff's side. On that account, and having due regard to the dictates of justice, I consider this to be a sound reason for not ordering the defendant's wasted costs to be fully paid on the indemnity basis, and instead, a discounted approach is to be preferred.
Another reason for not ordering indemnity costs is that, at present, it is unclear on the evidence as to where on the plaintiff's side of the record, the bulk of the fault lies for the successive changes to the plaintiff's pleaded case. The requirement for procedural fairness indicates that the determination of that question, if it continues to remain an issue, should be deferred until all other issues have been determined in the proceedings.
I therefore intend to proceed according to the foreshadowed broad-brush approach. I do so in circumstances where there is no challenge to either the hourly rates or the work descriptions set out in the annexures to the affidavits of Mr Brothers in which he identifies the defendant's wasted costs in the aggregated sum of $124,057.74. In my assessment, the work described, the rates charged, and the described time taken all seem reasonable in response to the tasks required. In applying the broad-brush approach to the issue, I assess and allow the defendant's costs at the discounted rate of 75 per cent of the sum claimed, which I round down to $90,000, including GST.
In ordering that sum to be paid forthwith, I have had regard to the general evidence of the plaintiff already given in the proceedings, his history of investment and property development and the impression that evidence gives of his financial circumstances.

Orders

I make the following orders: 1. Pursuant to s 98(1) of the Civil Procedure Act 2005, the plaintiff is ordered to pay the defendant's wasted costs incurred consequent upon the plaintiff's successive applications to further amend his statement of claim and the related need to vacate hearing dates; 2. The costs that are the subject of Order (1) above are assessed in the gross sum of $90,000 including GST, and those costs are to be paid by the plaintiff to the defendant within 21 days of today's date; 3. For reasons of procedural fairness, the question of whether the plaintiff should be indemnified by any person for the costs that are the subject of orders (1) and (2) above, is deferred, and is reserved to be determined after the delivery of the separate final judgments on the liability and quantum issues in the proceedings; 4. Liberty to apply on 7 days' notice if the plaintiff seeks to vary the time for payment identified in Order (2) above.

Amendments 13 June 2017 - Sub-paragraph (11) of paragraph [11] - correct dates. Paragraph [12] change defendant to plaintiff. 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. Decision last updated: 13 June 2017

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