Williams v Commonwealth of Australia [2007] NSWSC 1342 | Case summary

1 HIS HONOUR: On 27 June 2007 I ordered that the limitation period for the plaintiff's cause of action be extended and ordered the parties to make written submissions on the question of costs. 2 The ordinary rule is that a "successful applicant, who allows him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable" (emphasis added): Holt v Wynter (2000) 49 NSWLR 128 per Sheller JA, with whom Meagher, Handley JJA and Brownie AJA agreed. As a starting point in the circumstances of this case as I think I made sufficiently clear in the judgment on the substantive question, it was not the applicant's fault in any sense that the action was out of time. In Holt v Wynter it should be recalled, the applicant was personally not responsible for the delay but one or more of the solicitors she retained were so responsible. Nor was the respondent. On the face of it, as it seems to me, the necessity of finding that a respondent's opposition to an application to extend time was "wholly unreasonable" before an applicant can recover the costs of a successful application to extend time, arises only where the plaintiff was directly or indirectly responsible for not commencing the action before expiration of the limitation period. 3 It must be remembered, also, that the ability to obtain an extension of time is a right granted by the law. It is not an indulgence following a failure or some wrongdoing. In Commonwealth of Australia v Lewis [2007] NSWCA 127, Beazley JA (with whom the other members of the Court agreed) stated the rule as follows - "[94]…I am of the opinion…that in the ordinary course, a court would order a successful applicant for an extension of time to pay the costs…[citing the passage from Holt v Wynter which I have quoted above]." 4 There is nothing in the judgment that suggests that the applicant had been responsible for allowing the limitation period to pass before taking action and there is no discussion of this element of the Holt v Winter statement of principle. I am, of course, bound by what the Court of Appeal has said and must conscientiously apply the law as stated by it. I would, however, wish to respectfully comment on the apparent extension of the rule to cases where the plaintiff is in no way to blame for the late commencement of proceedings. 5 It is easy to understand why a plaintiff should pay the costs of an application to extend time, where he or she has "allowed him or herself to get out of time", thus requiring otherwise unnecessary proceedings to be undertaken and obliging a defendant to deal with the issues in such an application, which are rarely straightforward and are often not entirely predictable. However, for myself, I cannot see that it is just to order that a plaintiff who is out of time through no fault whatever of his or her own and is forced to make an application to extend time to vindicate a legal right should pay the costs of the application where, ex hypothesi, he or she has established, in the face of the defendant's opposition, that the extension should be been granted. For myself, I cannot see why any different rule should apply to a plaintiff in this position than to a litigant who succeeds in any other conventional matter. It seems to me, with greatest respect, that it is unjust to require such a plaintiff to pay the costs of the application; certainly, an order should be no more adverse than that the costs should be costs in the cause. I am unable to understand why the qualification of the rule in Holt v Wynter has been or should be disregarded. It may be worth noting, also that it seems that the rule has been applied without noticing the adverb "wholly": the test, it seems now, is whether the respondent has been simply unreasonable. 6 The Commonwealth makes a number of submissions to the effect that its conduct of the interlocutory hearing was reasonable. I would accept that submission but it seems to me to be of only marginal significance. The real question is whether its opposition to the application was unreasonable, though no doubt if the conduct of the proceedings was unreasonably protracted or concentrated on irrelevant or peripheral matters, that is a matter which a judge would be entitled to take into account. 7 As to whether its opposition to the application was unreasonable, the Commonwealth focus was directed to the most substantial controversy in the case, which concerned the issue arising under s60I(1) of the Limitation Act 1969, in particular whether the plaintiff ought to have become aware of the material facts set out in paragraph (a). The Commonwealth argued that, having regard to the evaluative judgment required by this provision, noted as "imprecise" by Basten JA in Commonwealth v Shaw [2006] NSWCA 209, it was not unreasonable for the Commonwealth to seek to demonstrate that, indeed, the plaintiff ought to have been aware of those matters, accepting that he did not actually know of them. 8 In this respect the Commonwealth relies in particular on a history given to Mr Wilks, a psychologist, by the plaintiff, that he had frequent suicidal thoughts every one to two months of shooting himself and contends that it was reasonable for the Commonwealth to rely on this matter as suggesting that the plaintiff ought to have been aware that he had a psychiatric condition. To my mind this is quite unrealistic. The fact is, as I point out in my judgment, there is no suggestion at any time that the plaintiff was moved to actually carry out any of these thoughts let alone attempted to do so. Furthermore, during this period he was undertaking responsible work requiring a high degree of leadership and application. It seems to me that, a conclusion that this report would be likely to prove forensically useful was, more hopeful than realistic. 9 The Commonwealth noted my finding that it would have been reasonable, perhaps wise, for the plaintiff to have sought medical help in the light of his symptoms. But, of course, this is not the test proposed by the section, which is much more closely approached by asking whether it was unreasonable for the plaintiff not to have done so. 10 It is then suggested that the matters of prejudice raised by the Commonwealth are reasonable to be raised, pointing to the evidence of the plaintiff's alcohol consumption, the absence of employment records, the absence of the records of Dr Stanton, and my finding that the plaintiff's case for damages was "markedly less than overwhelming". 11 So far as the matters of general prejudice were concerned, they were not unusual and there was a substantial degree of information available to the Commonwealth. In relation to the other matters, particularly the employment records, the mode of establishing with a reasonable degree of probability the likely earnings during the relevant time was, as I decided, reasonably high and there was no significant prejudice occasioned to the Commonwealth as to this matter. Such a finding was scarcely controversial and, moreover, was entirely predictable especially given the way in which such arguments in similar circumstances have been dealt with in other cases involving the Voyager/Melbourne litigation. The same can be said relating to the absence of the records of Dr Stanton which was not, I thought, a substantial matter and I do not think it reasonably could have been thought to be so. 12 Overall, I am of the view that the opposition by the Commonwealth to the plaintiff's application to extend time was not reasonable. Certainly, the Commonwealth had arguments which were capable of being articulated and properly presented but whether resistance to such an application is reasonable requires more in my view than the articulation of a merely arguable case. In my view, the opposition was essentially a fishing exercise in which the Commonwealth dangled a line in the hope that a substantial fish might be landed, though the practical reality was that the best that might be caught was a minnow. Of course, I am not for one moment suggesting that it was not entirely proper for the Commonwealth to require the plaintiff to establish proper grounds for an extension of time and to test those grounds in so far as this could be done. But the question whether opposing an application of this kind is unreasonable, for the purpose of justly ordering the plaintiff to pay the costs of a successful application depends on somewhat different considerations. The test is one of practical judgment as to the likely outcome of the application. The overwhelming likelihood of its success made opposition to it unreasonable. 13 In my view, therefore, an order for costs should be made in favour of the plaintiff.

Williams v Commonwealth of Australia

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (3)

Cited By (4)