JUDGMENT
1 In a reserved decision on 8 December last, I extended the period for the Plaintiff to commence the proceedings under s 60 G of the Limitation Act. I also ordered the Plaintiff to pay the costs of the motion to extend time, but on the application of the solicitor who then appeared for the Plaintiff, I gave leave to apply in respect of the costs order as the matter had not been argued during the hearing.
2 On 22 February the matter of costs was argued, Mr Hennessy SC with Mr Gow appearing for the Plaintiff and Mr Barry QC with Mr McLachlan for the Defendant.
3 Mr Hennessy submitted that the Plaintiff, being successful on the motion, should have his costs. He referred to the relevant rules and to the decision of the Court of Appeal in Commonwealth of Australia v Smith (2005) NSWCA 478.
4 Mr Barry, on the other hand, submitted that following Holt v Wynter (2000) 49 NSWLR 128, the Plaintiff should pay the costs of the motion. He also referred to the decision of McDougall J in Gretton v The Commonwealth (2005) NSWSC 437.
5 A few days after I reserved judgment the solicitors for the Plaintiff sent me a copy of the decision of Bell J in Spaulding v The Commonwealth (2006) NSWSC 81.
6 Section 98 of the Civil Procedure Act confers upon the Court "full power to determine by whom to whom and to what extent costs are to be paid". Uniform Civil Procedure rule 42.1 prescribes that costs should 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".
7 In Holt v Wynter a District Court judge had refused an application to extend time for commencing proceedings under s.52 (4) of the Motor Accidents Act. There was a successful appeal to the Court of Appeal (Priestley JA, Meagher JA, Handley JA, Sheller JA and Brownie AJA). All 5 judges agreed that the appeal should be upheld and the extension granted. Priestley JA dealt with the question of the applicant's costs at first instance in these terms:
"A question arises as to Miss Holt's costs at first instance. I am not aware of any settled practice concerning the costs of a successful applicant. It seems to me that the appropriate order in such cases must depend very much on the circumstances of the case.
The only instances of which I have any knowledge occurred in two cases in which I sat on the appeals: State Rail Authority v Gaudron (Court of Appeal, 12 August 1997, unreported) and Sydney City Council v Zegarac (1998) 43 NSWLR 195.
In the first, Dent DCJ found in favour of the plaintiff and ordered that costs of the application be costs in the cause. The appeal from his judgment was dismissed. (I do not recall any argument about his costs order.)
In the second case, Kirkham DCJ also ordered that the costs of the plaintiff, successful before him should be costs in the cause. His judgment was reversed in this court, making it unnecessary for this Court to consider his costs order. However, so far as I can recall, no complaint was made about it at the hearing.
The same order seems to me to be appropriate in the present case."
8 Meagher J A agreed "with the orders proposed by Priestley JA for the reasons given by Sheller JA."
9 Handley J A and Brownie AJA simply agreed with Sheller JA who was of the opinion that the appeal should be upheld and an extension of time granted. Regarding costs, His Honour said:
"In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. Although Judge Cantrill was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent's decision to resist the application as unreasonable."
10 In the result the plaintiff was ordered to pay the defendant's costs at first instance.
11 It is noteworthy that both the cases referred to by Priestley JA in the passage quoted above, namely State Rail Authority v Gaudron and Sydney City Council v Zegarac concerned applications for an extension of time under the Limitation Act. In Gaudron, the application under S 60G was made on the basis that at relevant times the plaintiff was not aware of the connection between his personal injury and the defendant's act or omission.
12 Zegarac was a case where the applicant claimed to have been injured when he slipped and fell in a toilet at Redfern. Just before the expiration of the relevant limitation period he sued the Council of the City of South Sydney. After the expiration of the limitation period it was found that the correct defendant was the Council of the City of Sydney. This led to an application for an extension of the limitation period under s 60 C, a section similar in terms to s 60G, although adopting different criteria. The need for the application under s 60C was the failure of the applicant or his solicitors to identify the correct defendant, a circumstance was in no way attributable to the respondent.
13 Smith concerned an appeal from a decision of Barr J granting an extension of time under s 60 G of the Limitation Act to a sailor who claimed psychological injuries arising out of the collision between HMAS Melbourne and HMAS Voyager on 16 February 1964, a similar cause of action to that brought in this case.