Amaca Pty Ltd v Hicks

[2011] NSWCA 295

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Amaca Pty Ltd v Hicks [2011] NSWCA 295

Hearing dates:

8 September 2011

Decision date:

16 September 2011

Before:

Basten JA at 1;
Whealy JA at 50;
Handley AJA at 51

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - costs - general rule that costs follow the event - costs incurred due to adjourned hearing - both parties provided with opportunity to provide further written submissions in light of result - party's failure to avail itself of the opportunity to do so - submission for exception to the general rule not based on point of law - challenge to costs order rejected

APPEAL - civil - evidence - admission of evidence based on discretionary judgment of the trial judge - reasons provided for admission of evidence - reasons not recorded because court sound-recording equipment turned off - no further evidence provided by the appellant to supplement transcript - no error of law established

TORTS - negligence - assessment of damages - Griffiths v Kerkemeyer damages - calculation based on average weekly earnings - whether calculations based on judge's "experience" - maximum amount of damages awarded for gratuitous care - Civil Liability Act 2002 (NSW) s 15(5)

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 15, 15A
Civil Procedure Act 2005 (NSW), s 98
Dust Diseases Tribunal Act 1989 (NSW), ss 4, 25, 25A, 25B, 32
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 42.1; Sch 1

Cases Cited:

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Bale v Mills [2011] NSWCA 226
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 277 ALR 611
Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161
House v The King [1936] HCA 40; 55 CLR 499
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex part Lam [2003] HCA 6; 214 CLR 1
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536

Category:

Principal judgment

Parties:

Amaca Pty Ltd - Appellant
Grahame John Hicks - Respondent

Representation:

Counsel:

Mr Williams with Mr J L Sharpe - Appellant
Mr P Semmler QC/Mr S Tzouganatos - Respondent
Solicitors:

Ellison Tillyard Callanan - Appellant
Turner Freeman - Respondent

File Number(s):

CA 2010/424786

 Decision under appeal 

Before:

Kearns J

File Number(s):

DDT 55 of 2010

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent suffers from asbestosis, for which the appellant admitted liability. He issued proceedings in the Dust Diseases Tribunal of New South Wales, which were referred to a mediator; mediation took place on 13 September 2010. No agreement was reached on damages. That issue was referred back to the Tribunal and listed for hearing, commencing on 11 October 2010. The respondent (the plaintiff in the Tribunal) sought to reply on a late report of Professor Breslin in relation to the likely future need for domestic assistance. To allow the appellant (the defendant in the Tribunal) to consider its response to that report, the trial was adjourned at the end of the first day and resumed on 22 November 2010, at which time it ran for two further days.

On 30 November 2010 Kearns J gave judgment in favour of the plaintiff in an amount of $354,423.19. On 17 December 2010 his Honour further ordered that the defendant pay the plaintiff's costs. The defendant appealed from a decision of Kearns J in point of law and on a question as to the admission of evidence, pursuant to s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW).

The issues for determination on appeal were:

(i) whether the trial judge erred in admitting into evidence the report of Professor Breslin, dated 30 October 2010;

(ii) whether the trial judge had made a finding without evidential basis to support the adoption of the rate at which domestic assistance should be valued;

(iii) whether the trial judge failed to take into account various considerations when assessing so much of the order for payment of costs, as addressed costs incurred after 11 October 2010.

The Court held, dismissing the appeal:

(per Basten JA, Whealy JA and Handley AJA agreeing)

In relation to (i)

1. The case did not involve any claim of inadmissibility of evidence, but rather a challenge to the discretionary decision of the trial judge: [11] - [12], [50] and [51].

2. Nothing was put before the Court to suggest the report was admitted as evidence without taking into account the relevant factors put to his Honour in argument, nor that procedural fairness had been denied. [14] - [16], [17] - [18], [50] and [51].

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353; House v The King [1936] HCA 40; 55 CLR 499 applied

In relation to (ii)

3. In making a calculation as to the value of gratuitous domestic assistance, his Honour expressly eschewed taking judicial notice of the 'appropriate commercial rate' but accepted, from his 'experience' that such rates can differ: [21], [50] and [51].

4. The calculation was based on an hourly rate of $24.95, being the average weekly earnings of all employees in New South Wales, as estimated by the Australian Statistician. Although providing the statutory basis for calculating a maximum amount of damages that may be awarded for gratuitous attendant care pursuant to s 15 of the Civil Liability Act 2002 (NSW) it was open to the Tribunal to use that figure as its basis to calculate the value of differing services: [21] - [23], [28], [50] and [51].

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390; Dasreef Pty Ltd v Hawchar [2011] HCA 21; 277 ALR 611 distinguished.

In relation to (iii)

5. The defendant did not argue in the Tribunal that it should obtain an order for costs and the submission that no costs should be awarded to the plaintiff in respect of the second two days of trial was based almost entirely upon the lateness and admission of Professor Breslin's report, both factors which his Honour took into consideration when awarding costs: [33], [46] - [47], [50] and [51].

6. In respect of the costs order, there was no express or implied decision of the Tribunal, identified as a point of law, reviewable by this Court, available to the appellant for challenge in the present appeal. Nor was the appellant denied a practical opportunity to raise any matter it wished: [48], [50] and [51].

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex part Lam [2003] HCA 6; 214 CLR 1 applied.

7. Comments on the appellant's claimed "rights" to make submissions, after the conclusion of the hearing before the Tribunal, absent an express grant of leave by the Tribunal: [41], [50] and [51].

Bale v Mills [2011] NSWCA 226 referred to.

Judgment

1. BASTEN JA : The respondent, Mr Grahame Hicks, suffers from asbestosis. The appellant, Amaca Pty Ltd, admitted liability, but no agreement was reached on the damages to which the respondent was entitled. That matter was addressed in proceedings in the Dust Diseases Tribunal. On 30 November 2010 the Tribunal (Kearns J) gave judgment in favour of the respondent (the plaintiff in the Tribunal) in an amount of $354,423.19. On 17 December 2010 the Tribunal further ordered that the appellant (the defendant in the Tribunal) should pay the plaintiff's costs.

1. The present appeal is limited to two issues. The first is the allowance made by his Honour for gratuitous domestic care services; the second relates to so much of the order for payment of costs as addresses costs incurred after 11 October 2010. The issues are related.

1. The appeal to this Court lies from a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence: Dust Diseases Tribunal Act 1989 (NSW) ("the DDT Act"), s 32(1). Part of the appeal involves a challenge to the admission of particular medical evidence. To appreciate the nature of the issues, it is necessary to identify the brief procedural history of the matter in the Tribunal.

Procedural history

1. In a report of 26 November 2009 Associate Professor Breslin, a consultant thoracic physician, stated that the plaintiff probably suffered from pulmonary asbestosis. Although his main symptom at that stage was a distressing cough, Professor Breslin expected that his life expectancy would be reduced by three to five years as a consequence of his asbestosis.

1. On 11 March 2010 proceedings were commenced in the Tribunal. A statement of particulars was filed on 7 May 2010. On 29 July 2010 the respondent filed a medico-legal report from Dr Anthony Johnson, a respiratory physician.

1. On 13 September 2010 the parties attended a mediation, but failed to resolve the question of damages. Two weeks later, on Monday 27 September, the matter was set down for hearing to determine the question of damages, with the hearing due to commence on 11 October 2010.

1. On 30 September the plaintiff obtained a further report from Professor Breslin dealing with the likely need for future domestic assistance. That report was provided to the appellant on Friday, 1 October 2010, by facsimile. It was formally served on 6 October.

1. The hearing before the Tribunal commenced on Monday, 11 October; the plaintiff, the plaintiff's wife and Professor Breslin gave evidence, the cross-examination of the last being adjourned to allow counsel for the defendant to consider his second report. At the completion of the oral evidence, documents were tendered by both sides, without objection, except as to the second report of Professor Breslin, which counsel for the defendant sought an opportunity to consider. He was granted that opportunity and invited to say how long he would need: Tcpt, 11/10/10, p 46 (30)-(40). Although he had had the report for about a week at that stage, he was unable to indicate how much more time he required and asked that the matter be listed for mention during the following week. The matter was stood over to Tuesday, 19 October, for mention. On that day, the defendant served a further report of Dr Gardiner, responding to Dr Breslin's second report. The further hearing was fixed to commence on 22 November.

1. After the further date was fixed, the plaintiff gave notice that he wished to cross-examine Dr Gardiner. (The defendant did not seek to further cross-examine Dr Breslin.) However, Dr Gardiner was not available on 22 November, and the further evidence was heard the next day. The matter concluded on Tuesday, 23 November, with the evidence of Dr Gardiner, called by the defendant, followed by closing addresses for both parties.

Issues on appeal

1. It is convenient to deal with the three issues identified by senior counsel for the appellant in the chronological order in which they arose at the trial:

(1) admission of the second report of Professor Breslin;

(2) the calculation of the value of gratuitous domestic assistance, in the absence of evidence, and

(3) the order permitting the respondent to recover costs after the first day of the trial.

Admissibility of evidence

1. Subject to specific exceptions to be found in ss 25, 25A and 25B of the DDT Act, admissibility is determined according to admissibility in proceedings in the Supreme Court: s 25(1) and (2). The Tribunal is described as "a court of record" (DDT Act, s 4(2)) and would thus appear to fall within the definition of "NSW Court" in the Evidence Act 1995 (NSW).

1. This case did not involve any claim of inadmissibility. The appellant acknowledged that the decision as to whether or not to allow the report into evidence was a matter for the discretionary judgment of the trial judge. It is possible to envisage circumstances where such a decision could involve an erroneous determination of a point of law. However, if the evidence were admissible, such circumstances would be unusual.

1. The notice of appeal did not identify any relevant point of law: it merely asserted that his Honour erred in point of law in admitting the report into evidence. The written submissions made reference to various "assurances" given by the plaintiff, as to the matter being ready to proceed when fixed for hearing on 27 September 2010 and as to matters said to have transpired in the course of argument, part of which was not transcribed. These and other matters referred to in the written submissions would undoubtedly have been permissible factors for his Honour to take into account. If they were expressly identified in the course of argument leading up to the ruling on evidence, it would be a rare case in which an appellate court, absent reasons demonstrating error, would infer that such matters had not been taken into account.

1. In the course of oral argument on appeal, counsel refined the proposition so as to rely upon a failure to take into account the fact that the tender of the report would result in the vacating of the second hearing date (being the following day) with resultant prejudice to the appellant, including by way of additional costs. It was, counsel submitted, almost inevitable that a two day trial would thus be expanded to three or possibly four days.

1. Although the course of the proceedings is not entirely clear, the transcript of 11 October (pp 27-28) suggests that his Honour gave some reasons for admitting the report, which were not sound-recorded because the equipment was turned off: p 28 (14). Where reasons given by a trial judge are not reduced to writing and are not recorded in any other way, it is open to a party alleging error based upon those reasons to proffer affidavit evidence as to what was said. That was not done. Accordingly, there is nothing before this Court to suggest that his Honour did not take into account relevant factors which had been put to him in argument. What had been put may be briefly extracted from the transcript, from the statements of Mr Sharpe, appearing for the defendant (pp 26-27):

"MR SHARPE: Your Honour, this is, in many ways, a difficult situation. The matter came before the Court on 27 September when it was listed for hearing. At that time, there was no indication given by the plaintiffs [sic] that they were going to get a further report from Professor Breslin. They said we are just going to go to trial. On the face of it, Professor Breslin's letter of instructions to him took place two days after the matter was listed for trial. Now the first we get it is a letter bearing date 1 October.

... Now your Honour, we received that on 5 October. That means we are here on 11 October, six days later.

HIS HONOUR: It was six days ago, yes.

...

MR TZOUGANATOS [for the plaintiff]: No, it was faxed on 1 October.

MR SHARPE: Anyhow, I accept what my learned friend says. But even it be the case, that is 10 days ago, your Honour, without us being advised or the Court being advised, which the plaintiff really should do, that they are going to raise some other issue. It is just simply not good enough for a defendant to be put in this position your Honour.

...

HIS HONOUR: Would you need an adjournment if I let this in Mr Sharpe?

MR SHARPE: I have goT nothing to meet it with your Honour.

HIS HONOUR: No, but would you need an adjournment if I let this in?

MR SHARPE: I think so your Honour. I would like to get it looked at.

HIS HONOUR: Well that might be the consequence, Mr Tzouganatos. I do not think the plaintiff should be deprived of presenting his case but he is not going to deprive the defendant of presenting his."

1. Assertions by way of submission that the argument also extended to questions of costs thrown away and prejudice may be assumed to be correct. Such consequences are obvious. The suggestion that the trial judge in some impermissible way ignored such factors is untenable.

1. The appellant also suggested that the error was apparent from the result. That presumably meant (although it was not expressed in this way) that the result was so manifestly unreasonable as to bespeak error of law, in the sense described by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 and in House v The King [1936] HCA 40; 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).

1. That submission also should be rejected. One of the procedural features of the Tribunal is its ability to deal with matters with a degree of expedition not usually available in the ordinary courts. The procedural history set out above demonstrates that this matter came on for hearing within a matter of months of the proceedings being commenced and two weeks from the date the matter was fixed for hearing. A claim for domestic care had been identified in the pleadings, the underlying facts being included in the affidavit of the respondent, which was admitted without a relevant objection at the trial. Counsel for Mr Hicks opened on the basis that there was "a modest claim for Griffiths v Kerkemeyer damages from 2001 to the present dealing only with the plaintiff's inability to perform heavier domestic tasks around the home, and then there is a large Griffiths v Kerkemeyer claim for the future ...": Tcpt, 11/10/10, p 2 (2).

1. It is clear that at all relevant stages the plaintiff sought to pursue a claim for damages for domestic assistance, as would be expected in relation to an asbestosis claim. Professor Breslin's first report (of 26 November 2009) indicated that, at that stage, he had very limited functional disability. His second report, of 30 September 2010, set out Professor Breslin's expectations as to the plaintiff's future requirements for assistance. Evidence supporting this readily foreseeable, but previously unquantified, head of damage was thus obtained only belatedly. Nevertheless, it can well be understood that the trial judge should have thought that justice required that the plaintiff be allowed to call such evidence, even if there was disruption of the timetable for trial. The decision to admit the evidence does not demonstrate, of itself, any error of law, or of the principles relating to the exercise of such discretionary judgments. This ground of appeal must be rejected.

Basis for quantifying loss

1. As correctly identified in this Court by counsel for the appellant, the plaintiff needed to establish three elements in order to obtain damages in respect of domestic assistance. First, he needed to establish a level of disability, giving rise to the need for assistance; secondly, he needed to quantify the hours over which assistance had been and would be required and, thirdly, he needed to identify a rate at which such assistance should be valued.

1. Once Professor Breslin's second report was in evidence, it was accepted that the plaintiff had established the first two limbs of the exercise set out above. He had not, the appellant contended, called any evidence as to the rate at which such assistance should be valued. In making a calculation, his Honour expressly eschewed taking judicial notice of the "appropriate commercial rate" but accepted, from his "experience", that "providers of commercial care offer rates that can be quite different for the same type of care": at [59]. His Honour accepted the rate claimed by the plaintiff as the appropriate basis for calculation. That was (for the present) an hourly rate of $24.64, being the average weekly earnings of all employees in New South Wales, as estimated by the Australian Statistician. Pursuant to s 15A(2), picking up the calculation identified in s 15(5) of the Civil Liability Act 2002 (NSW), that rate provides a maximum amount of damages that may be awarded for gratuitous attendant care services.

1. The appellant complained that, in adopting this course, the trial judge had made a finding without evidential basis to support it. That, the appellant contended, involved a decision of the Tribunal in point of law, in so far as it implicitly accepted that there was evidence upon which such a calculation could be undertaken: see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [33] (French CJ), [91] (Hayne, Heydon, Crennan and Kiefel JJ). The appellant also drew attention to the following passage in the joint judgment in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 277 ALR 611 at [47], in the following terms:

"Whatever may be the position with respect to other tribunals, the statutory requirement that, subject to certain limited exceptions, none of which was engaged here, the Dust Diseases Tribunal apply the rules of evidence compels the conclusion that the primary judge erred when he said that he was permitted to take his experience into account in determining what caused Mr Hawchar's silicosis. To the extent to which earlier decisions of the Court of Appeal concerning the Dust Diseases Tribunal hold to the contrary, they should be overruled. Under the rules of evidence the primary judge was permitted to take account of matters not proved in evidence in this case only if they were matters of which judicial notice could be taken. It was not suggested that the causes of silicosis were matters for judicial notice."

1. This was not a case where the trial judge made findings without evidence. As already explained, he had before him evidence of average weekly earnings, reduced to an hourly rate. There was no challenge to the accuracy of the figure. Nor was there any objection to the basis on which it was provided, that being in a schedule presented for the plaintiff in the course of closing submissions.

1. The course of submissions before the Tribunal involved the defendant being heard first. Counsel started by referring to "future care" and pressed on the trial judge the opinions of Dr Johnson set out in a report of 19 October 2010: Tcpt, 23/11/10, p 113 (37). He returned to the issue after dealing with general damages and life expectancy. He contended that the medical evidence did not support any award in respect of domestic care for the past: p 114 (35)-(46). He continued:

"For the future, your Honour, if one accepts what Dr Johnson does allow, and in my respectful submission it would not be a matter of mathematical calculation, precision of an hour here, whatever it is there, but more in keeping with the approach of Dr Gardiner as to the likelihood of what will happen with this man, and the figure I would suggest your Honour for this case is a global figure of $30,000. ...

Your Honour, if we were to be talking in greater figures than that, ... one would have expected there to be some sort of evidence from an expert in the field about the needs and the types and so on. We do not have that. The best we have is a comparison between Professor Breslin's view [and that of Dr Gardiner]. ... The respite care, your Honour, one has to question, she being the one who is going to provide the care, not because she does not want to but given her health condition and her age, one would have to seriously question that assessment as being appropriate, where as it is more likely than not that he will not require that care, according to Dr Gardiner. And the nursing home care, well, that comes into that figure that I have - the whole lot, in my respectful submission, of what Professor Breslin says, if one were to allow a figure of $30,000, in my respectful submission that would cover the possibilities of the high end and also Dr Gardiner's views as to the low end."

1. Although both Professor Breslin and Dr Gardiner had sought to identify the number of hours per week required for different forms of assistance, counsel for the defendant was proposing a form of "cushion" on the basis that a precise calculation was inappropriate. There may be some doubt as to whether an award calculated in global terms could properly be made, given the obligation at least to identify a ceiling, above which no amount can be awarded, for the purposes of s 15A of the Civil Liability Act . It is not necessary, for present purposes, to resolve that question: reference to the submission is made in order to understand the nature of the issues that were put to the trial judge.

1. In making his closing submissions, counsel for the defendant did not have before him the schedule of more precise calculations which was handed up by senior counsel for the plaintiff, in commencing his closing address. That schedule undertook a calculation of past and future gratuitous care and assistance, said to cover a claim for "lawn mowing, heavy cleaning, washing cars, gardening, shopping and property maintenance". There was a further table in respect of "personal care and assistance" for the last 10 years of the plaintiff's life, estimated to commence in 2015. The total claim for past loss for a period from 1 January 2005 to 22 November 2010, including interest, was approximately $32,000. The claim for the future was an amount of approximately $310,000. The rate varied for the earlier periods, being based on average weekly earnings for each period.

1. Counsel for the defendant sought to reply to these submissions. He rejected the proposition that the Tribunal would be assisted by comparing other cases and continued (Tcpt, 23/11/10, p 130 (8)):

"Your Honour, the figures that my learned friend relies upon, there is no allowance for vicissitudes which if your Honour were to go that way, there would have to be an allowance for vicissitudes. And, your Honour, the rate as they try to make out is so generous, the rate is of course the maximum rate, and why one would allow the maximum rate for a cleaner as against someone else is not presently obvious.

...

Because why would you use the same rate for say a cleaner as they do there, for all of the people [who] do all of the work, I mean there would be different rates for different things.

HIS HONOUR: But it may be the case that can you get cleaners and lawn mowers and gardeners and other people for less than [$24] in the real world?

MR SHARPE: Jim's Service is fifteen bucks an hour. These matters are - I mean baby sitters you can get, I can tell you, for different rates."

1. In his initial closing submission, counsel for the defendant took the position that precision was impossible and that a global figure should be assessed. In his response to the hourly calculations put forward on behalf of the plaintiff, counsel argued that a more precise calculation was required, namely one which discriminated between different kinds of service providers. It was true that there was no evidence before the Tribunal which would have allowed such differential calculations. However, his Honour rejected that approach. He accepted that a calculation should be undertaken based on an hourly rate of average weekly earnings: he did not accept the level of care claimed by the plaintiff. The absence of more precise evidence of specific rates for different service providers was therefore immaterial.

1. The evidence before his Honour provided a basis for a finding that particular services were needed and that, as best could be estimated, they were needed for a particular number of hours per week. There was before him, without objection as to its amount, a cost per hour. The figure itself was not objected to, only its appropriateness for the relevant calculation. No doubt it would be possible to adopt a more complicated calculation, involving different rates for different care providers. However, such calculations are inherently imprecise and an overly sophisticated exercise may provide little more than a false appearance of accuracy: see State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [87] (Heydon JA), albeit in relation to loss of earning capacity. Adopting an average hourly rate no doubt elided differences between those who might be expected to provide services at lower rates and those whose rates were likely to be higher. No error of law was shown to arise from such an approach; indeed it is arguable that, at least in determining the ceiling on such awards, that is the approach required by ss 15(4) and 15A(5) of the Civil Liability Act . The calculation being without legal error, the 'no evidence' ground of appeal must fail.

1. There remains the complaint, not identified in the notice of appeal or in the written submissions, that his Honour had relied on "experience" in a manner inconsistent with the statement of principle in Dasreef set out above. The relevant statement followed reference to a dispute between counsel as to whether the legislation provided a "maximum rate" or a "prescribed rate": his Honour noted that it did not matter. (In fact, the Civil Liability Act prescribes a maximum amount of damages for gratuitous attendant care services calculated by reference to a particular hourly rate.) He continued:

"In my experience, whether the rate be a maximum or a prescribed one, it is a rate that has always been used in calculating damages for gratuitous care. In any event, if a defendant wishes to suggest that a court or tribunal ought to adopt a different rate, it ought to introduce evidence as to relevant available rates."

1. These statements should be read in context. The paragraph commenced with reference to the submissions for the defendant that different rates should be applied depending on the service provider. The proposition that such a course was not adopted in other cases should be understood as a rejection of any suggestion that the course proposed was required. There was no suggestion that the primary judge was intending to undertake a calculation based on his own "experience", in the sense in which that term arose in Dasreef . ( Dasreef was concerned with causation of a medical condition.) Nor, as the appellant also suggested, was his Honour seeking in the following sentence to reverse the onus of proof. Having dismissed the proposition that it was necessary to make differential assessments for each service provider; he then noted that if the defendant thought such an approach should be pursued, it should introduce evidence as to the different rates. Because he did not accept the premise, the consequence did not arise and his comment in that regard was therefore immaterial.

Challenge to costs order

1. The Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") provide that all provisions of the Civil Procedure Act 2005 (NSW) (except Pt 9) and all provisions of the UCPR (with three exceptions not presently relevant) apply to the Tribunal: see UCPR, r 1.5 and Schedule 1. Accordingly, the power of the Tribunal to award costs is found in s 98 of the Civil Procedure Act , which confers a wide discretion. It is, however, subject to rules of court and, relevantly, to UCPR, r 42.1, which provides that, unless the Court otherwise orders, costs follow the event. Application of those principles in the present case required that the plaintiff obtain an order for costs against the unsuccessful defendant, unless the Tribunal determined they should be reduced.

1. The defendant did not argue in the Tribunal that it should obtain an order for its costs; rather, counsel submitted (Tcpt, 23/11/10, p 134 (40)):

"Your Honour I am not seeking an order for costs, I am seeking that the plaintiff have no costs for the two extra days."

1. The basis for the application was the incurring of additional costs as a result of the admission of Professor Breslin's second report and the further step taken by the defendant of obtaining a report from Dr Gardiner, by way of reply. In the event, the defendant did not seek to cross-examine Professor Breslin in respect of his second report, but the plaintiff cross-examined Dr Gardiner.

1. Of the two days originally fixed for hearing, the second was abandoned. At a directions hearing on 19 October, the further hearing was fixed to commence on 22 November, but that day was effectively also abandoned because Dr Gardiner was not available. The evidence of Dr Gardiner and final addresses took place on the following day.

1. There was undoubtedly an arguable case that the plaintiff should lose the costs of the vacated second day of the hearing, if that were caused by the belated service of Professor Breslin's second report. However, that itself involved an evaluative judgment: a copy of the report had apparently been received at about lunchtime on Friday, October 1, albeit a day preceding a long weekend. By the time of the hearing on October 11, Mr Sharpe had not had the report "looked at" (presumably by those instructing him or by a medical practitioner - the ambiguity was not clarified) and, as a result of the report being admitted, sought an adjournment.

1. Whether the defendant had had a reasonable opportunity to review the report was itself a matter for an evaluative judgment. The report was a letter covering 1.5 pages, of which at least half a page was taken up by the heading and signature. How much of the responsibility for the vacation of the second hearing date resulted from the lateness of the report and how much from the failure of the defendant to consider its position with reasonable diligence might be open to differing assessments.

1. The same analysis can be applied in respect of the first of the adjourned hearing dates. Having served Dr Gardiner's report, the defendant invited the plaintiff to say whether Dr Gardiner was required for cross-examination. However, the defendant agreed to the adjourned hearing date before obtaining a response. It might have been assumed that Dr Gardiner would be available on that day. By the time the response came, he was apparently unavailable for that day. The question of costs was addressed by counsel for the defendant in his closing submissions. An exchange of correspondence in respect of the requirement for Dr Gardiner to attend for cross-examination was tendered. Again, there may have been differing views open as to the degree of responsibility attributable to the parties for the abandonment of 22 November.

1. On 30 November 2010 the primary judge delivered judgment in respect of the assessment for damages. He concluded at [65]:

"Some submissions were made as to costs. I shall consider those submissions in awarding costs. I make no order for costs at this stage as there may be some further submissions to be made as to costs in light of the result. I grant the parties leave to provide written submissions as to costs within seven days."

1. Both parties responded to that invitation on 6 December 2010. The plaintiff's solicitors "provided extensive written submissions", as described by the trial judge in his judgment on costs, delivered on 17 December 2010 at [3]. On the same day, his Honour noted, the defendant's solicitors "provided a note stating that the defendant had made its submissions on costs and did not wish to add anything further. They apparently sought to "reserve the right to respond to the plaintiff's submissions": at [2].

1. Neither of the documents referred to by the trial judge is before this Court. On the basis of the leave granted on 30 November, the defendant had no "right to respond". The presumption of practitioners in these circumstances has been noted on more than one occasion: recurrence does not legitimate the practice: see Bale v Mills [2011] NSWCA 226 at [57]-[60]. The defendant, however, took the matter one stage further as recorded by his Honour at [4]:

"On 7 December 2010, the defendant's solicitors then wrote to the plaintiff's solicitors objecting to their submissions 'in respect to law and content' and stating they would approach me to have the matter listed for further argument. At the same time, they wrote to me requesting that the matter be listed before me on 13 or 14 December 2010."

1. Objection was taken on behalf of the plaintiff to the proposed relisting. The Tribunal did not respond to the request. Nothing further being received from the defendant in writing, judgment was delivered on 17 December 2010.

1. In the course of oral argument on the appeal, it appeared to be suggested that there was some procedural unfairness on the part of the Tribunal in failing to respond to the request to relist the matter for further hearing in respect of costs. In the circumstances of the case, this submission, which did not reflect a ground of appeal, cannot be accepted. The defendant has not put before this Court the submissions or the correspondence referred to in the judgment of the primary judge of 17 December 2010. It is therefore not possible to know whether the defendant should have been given a further opportunity to provide submissions in circumstances where it did not avail itself of the opportunity to do so in writing.

1. The suggestion that there is unfairness in failing to respond to a request to make oral submissions in circumstances where an opportunity to put submissions in writing has been eschewed, could only be made good in extraordinary circumstances. The failure of the defendant to trouble this Court with some indication as to the nature of the submissions which were sought to be made and an explanation as to why they could not be made in writing prevents the matter being taken further. Although care should be taken in assessing factual matters out of context, the remarks of Gleeson CJ to similar effect in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex part Lam [2003] HCA 6; 214 CLR 1 at [22] resonate.

1. Ex parte Lam involved an element favouring the grant of an opportunity to make further submissions not present in this case: a representation had been made to Mr Lam that he would have that opportunity. Even that was held not to be sufficient to establish want of procedural fairness, despite the opportunity being denied, where the circumstances rendered the lost expectation devoid of practical content. No such representation can be conjured from the failure of the Tribunal to respond to a request (the precise terms of which are not known to this Court).

1. The error of law relied upon was an asserted failure to take into account various considerations, namely that "the only reason" for the need for the last two days was the adjournment caused by the late service of Professor Breslin's report; that his Honour wrongly considered that the matter covered three days, not four; that the total evidence could have been taken in two days if the report of Professor Breslin had been served in time; that Dr Gardiner's evidence only became necessary because of Professor Breslin's second report and the lateness of the request for Dr Gardiner to be available for cross-examination.

1. This submission should be assessed by reference to the manner in which the submissions were put to the Tribunal by counsel on 23 November 2010 (no further submission having been made on behalf of the defendant). The submission that no costs should be awarded in respect of the second two days was based almost entirely upon the lateness of Professor Breslin's report. His Honour stated in his judgment on costs at [7]:

"The substance of the defendant's submission made during the hearing was that the plaintiff should not have his costs of the last two days of hearing. These days were occasioned by the late service by the plaintiff of a report of Professor Breslin. The premise underlying the defendant's submission is correct."

1. This passage accurately summarised the submission made, and accepted the underlying premise. The proposition that his Honour did not take that matter into account is simply untenable. The other matters of complaint merely reformulate factual considerations identified in the judgment on costs. It follows that there was no express or implied decision of the Tribunal on a point of law available to the appellant for challenge in the present appeal. The challenge to the costs order must be rejected.

Conclusion

1. Each of the challenges raised on the appeal having failed, the appeal must be dismissed with costs.

1. WHEALY JA : I agree with Basten JA and with the orders he proposes.

1. HANDLEY AJA : I agree with Basten JA.

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Decision last updated: 16 September 2011