Baxter v Boshell
[2021] NSWSC 670
•15 June 2021
|
New South Wales |
Case Name: | Baxter v Boshell |
Medium Neutral Citation: | [2021] NSWSC 670 |
Hearing Date(s): | 28 May 2021 and on the papers |
Date of Orders: | 15 June 2021 |
Decision Date: | 15 June 2021 |
Jurisdiction: | Common Law |
Before: | Harrison J |
Decision: | Order that the costs thrown away or occasioned by the need for the directions hearings on 14 October 2020 and 30 April 2021 should be the defendant’s costs in the cause. |
Catchwords: | COSTS – where plaintiff failed to comply with directions for the filing of expert liability evidence – whether plaintiff or defendant should pay costs of two directions hearings that were necessary for the default to be considered – costs to be defendant’s costs in the cause |
Category: | Costs |
Parties: | Katrina Baxter (Plaintiff) |
Representation: | Solicitors: |
File Number(s): | 2020/170768 |
Publication Restriction: | Nil |
JUDGMENT
HIS HONOUR: On 28 May 2021, the defendant sought an order for the costs thrown away or occasioned by the need to appear before me on 14 October 2020 and 30 April 2021. At issue on these occasions was the plaintiff’s failure to complete her expert evidence in accordance with directions that she should do so in accordance with an agreed timetable. For example, on 27 July 2020, orders were made by consent that the plaintiff would file and serve her expert liability evidence by 31 August 2020. That did not occur. On 14 October 2020, that date was extended to 13 November 2020. That order was also not complied with by the plaintiff.
When the matter returned to me on 30 April 2021, the plaintiff sought a further 28 days to complete service of her expert liability evidence. Accordingly, after adjourning the matter to 28 May 2021, I directed the plaintiff, by her solicitor, to file and serve no later than 27 May 2021, an affidavit setting out the history of the matter, including attempts on her behalf to obtain evidence in support of her case on liability. The costs of 30 April 2021 were reserved.
In accordance with my direction, the plaintiff served an affidavit sworn by Tony Barakat on 27 May 2021. Mr Barakat explained that the plaintiff had encountered difficulties obtaining a report from Professor Dietz and was still waiting upon receipt of a report from Professor O’Connor. However, I was informed at that time that, notwithstanding the matters to which Mr Barakat had deposed, a full and accurate explanation for the delay could only be given if the plaintiff were permitted to do so confidentially. That approach was quite properly not opposed by the defendant. Accordingly, I then directed that the plaintiff, if so advised, should file a confidential affidavit in support of her opposition to the defendant’s application for the costs of 14 October 2020 and 30 April 2021. I reserved my decision on this costs argument in anticipation of receiving such an affidavit.
I have now been provided with a further affidavit from Mr Barakat sworn on 3 June 2021. For obvious reasons, I do not intend to refer to the substance of what Mr Barakat has said. It is enough to note that he has attempted to explain the delay in finalising the plaintiff’s expert liability evidence and has done so by reference to matters that he could not have relied upon unless they remained confidential. I have now considered the matters to which Mr Barakat deposed.
In my opinion, it would not be appropriate unconditionally to order the plaintiff to pay the defendant’s costs of the two disputed appearances. By the same token, I do not consider that the defendant should be liable for the costs of those days. It seems to me that in all of the circumstances, the costs thrown away or occasioned by the need for the directions hearings on 14 October 2020 and 30 April 2021 should be the defendant’s costs in the cause.
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