Briffa v Rail Corporation New South Wales (No. 2)

The plaintiff, Briffa, brought personal injury proceedings against several defendants, including Rail Corporation New South Wales. The defendants cross-claimed against one another. Briffa was unsuccessful in her claims against one of the defendants, while the cross-claims were largely unsuccessful, except for a claim by Meduri against Rail Corporation. The court was required to determine the costs incurred by the parties, including whether the unsuccessful defendants should bear the costs of Briffa's unsuccessful claims, and if a Sanderson or Bullock order should be made in relation to these costs. The court also considered whether the costs should extend to those incurred before the joinder of the unsuccessful defendants, and whether the plaintiff's alleged delay in aspects of the litigation was a relevant factor in the costs assessment. Furthermore, the court examined whether the first defendant was entitled to an order for indemnity costs from the third and fourth defendants under rule 42.18 of the Uniform Civil Procedure Rules 2005 (NSW), and compared offers of contribution between the defendants with offers of compromise and Calderbank offers that resolved the whole of the litigation.

The court determined that the third and fourth defendants should pay Briffa's costs of the action on the ordinary basis, as well as the first defendant's costs of the proceedings brought by Briffa on the ordinary basis, limited to costs incurred from the date of the amended statement of claim. It made a Sanderson order in this respect. The court also ruled that the third and fourth defendants were to pay the costs of the plaintiff in relation to this application for costs on an ordinary basis, but were to pay the costs of the first defendant on an indemnity basis. The court dismissed the third and fourth defendants' applications in relation to the costs of the cross-claims, and found in favour of Meduri against Rail Corporation in the cross-claim, awarding costs on an ordinary basis up to 17 March 2014 and on an indemnity basis from 18 March 2014.

This case involved a complex web of claims and cross-claims, with the court required to make nuanced decisions on costs. The court found that the unsuccessful defendants should bear some of the costs of the plaintiff's unsuccessful claims, and that a Sanderson order was appropriate in this context. The court also considered the plaintiff's alleged delay in aspects of the litigation, but did not find it to be a relevant factor in the costs assessment. Finally, the court awarded indemnity costs to the first defendant in relation to the costs of the application for costs, but dismissed the third and fourth defendants' applications in relation to the costs of the cross-claims. The final orders were that the third and fourth defendants were to pay Briffa's costs on the ordinary basis, the first defendant's costs on an indemnity basis, and the costs of the plaintiff in relation to the application for costs on an ordinary basis, but the costs of the first defendant on an indemnity basis.