Brittain v Commonwealth (No 2)

[2006] NSWSC 528

CITATION:	Brittain v Commonwealth of Australia [No.2] [2006] NSWSC 528
HEARING DATE(S):	19/5/06
JUDGMENT DATE :	5 June 2006
JUDGMENT OF:	Bell J at 1
DECISION:	The defendant is to pay the plaintiff’s costs of the application for an extension of the limitation period which were reserved by Master Malpass on 27 July 2000
CATCHWORDS:	Costs
LEGISLATION CITED:	Civil Procedure Act 2005 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Commonwealth of Australia v Smith [2005] NSWCA 478 Follent v Commonwealth of Australia [2000] NSWSC 674 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497
PARTIES:	Anthony Winston Brittain (Plaintiff) Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 21248/95
COUNSEL:	G Melick SC (Plaintiff) R Williams QC / I McLachlan (Defendant)
SOLICITORS:	James Taylor & Co (Solicitors) (Plaintiff) Australian Government Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 5 June 2006

21248/95 Anthony Winston Brittain v Commonwealth of Australia

JUDGMENT - Re: Costs

1 BELL J: On 27 July 2000 Master Malpass made orders extending the limitation period in these proceedings up to and including 29 November 1995. His Honour reserved the question of costs.

2 The proceedings came on before me for hearing. On 6 December 2005 I gave judgment for the plaintiff. On 16 December I made consequential orders dealing with the costs of the proceedings and interest. The parties sought to have the queston of the costs that had been reserved by Master Malpass stood over to be determined at a later time.

3 On 19 May 2006 I heard submissions on the question of the reserved costs. Mr Melick SC, who appeared on the plaintiff’s behalf, read paragraphs 33 and 34 of the affidavit of James Taylor, sworn on 13 December 2005 in support of his application (that the defendant pay the plaintiff’s costs of the extension application). Mr Taylor set out details of the cases in which the Court has made orders that the costs of the extension application brought by a member of the crew of the Melbourne in respect of a claim for personal injury arising out of the collision be costs in the cause and those cases in which the costs of the extension application have been reserved and in which the defendant has paid the costs of the extension application when “the costs issues settled”. There was a question concerning the accuracy of the material contained in these two paragraphs of Mr Taylor’s affidavit and Mr Melick drew my attention to the contents of a letter dated 5 September 2005 prepared by the Australian Government Solicitor’s office, inviting me to rely on the latter to the extent of any inconsistency.

4 In the defendant’s submission the plaintiff should pay its costs of the extension application or, in the alternative, the Court should make no order as to costs.

5 The defendant submitted that the Court should dispense with the requirements of the Uniform Civil Procedure Rules 2005 (the UCPR) and direct that the determination of the question of costs be dealt with pursuant to the provisions of Pt 52A of the Supreme Court Rules 1970 (the SCR) which were in force at the date the costs had been reserved.

6 The plaintiff submitted that the application should be approached by reference to Pt 42 of the UCPR. In particular reliance was placed on the provisions of r 42.7:

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:
(a) costs that are reserved and
(b) costs in respect of any such application or step in respect of which no order as to costs is made,
are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

7 Provision is made in schedule 6 cl 5(2) for the court to dispense with the requirement of the UCPR in relation to proceedings, and such consequential orders (including orders as to costs) as may be appropriate in the circumstances. The circumstance that costs were reserved prior to the commencement of the UCPR does not seem to me to be a sufficient basis for determining to dispense with the Rules. I approach the matter upon the basis that the UCPR apply to the present application. I do not consider that anything of moment turns on this. The provisions of r 42.7(1) are not determinative. The defendant’s submission is that the Court ought otherwise order since the reserved costs are of an extension application. This necessarily involves the loss of the defendant’s immunity from suit and the concomitant benefit in favour of the plaintiff. In the defendant’s submission, absent wholly unreasonable conduct on its part it should have its costs, or at least not be subject to an order against it.

8 In written submissions the plaintiff contended that Master Malpass had been impliedly critical of the conduct of the defendant, which was said to have caused considerable delay and additional costs. My attention was directed to his Honour’s judgment at [3], in which he commented that the proceedings had a similar history to those in Follent v Commonwealth of Australia [2000] NSWSC 674. His Honour in the latter judgment recited the number of occasions in which the proceedings had been listed and referred to a motion brought by the defendant relating to a request for particulars. I do not read his Honour’s judgment in the present proceedings as involving any criticism of the conduct of the defendant in opposing the application. I do not approach the question of the reserved costs upon the basis that the defendant’s conduct in opposing the extension was unreasonable.

9 In written submissions it was contended on the plaintiff’s behalf that:

4(c) There has been an estoppel by conduct on the part of the defendant in that until recently it had allowed reserved costs to be treated as costs in the cause and had plaintiffs been aware of the change in attitude applications could have been made at first instance to have them so treated rather than reserving the question to be resolved some six years after the event.

10 In the course of oral submissions Mr Melick did not contend that the defendant was estopped from opposing an order that the plaintiff have his costs of the extension application. Rather, he contended that a discretionary consideration that the Court may take into account in determining the present application was that in most cases in the Melbourne/Voyager litigation the costs of the extension application had been treated as costs in the cause (T 19/05/06 at 13.40). Allied to this was a contention that the defendant’s stance in seeking extensive particulars prior to the extension application (the matter to which it was said Master Malpass adverted at [3]) resulted in nice questions concerning the costs referable to the extension application and the costs referable to the proceedings. Mr Melick invoked the overriding purpose rule in s 56 of the Civil Procedure Act 2005 in support of the contention that this difficulty favoured an order that the costs of the extension application be costs in the cause. I do not consider that this is a matter to be taken into account in determining the costs of the extension application. The evidence on the application concerning the orders made in other, like, applications was not accepted to be as set out in Mr Taylor’s affidavit. As I have noted, Mr Melick accepted that to be the case. He sought the opportunity to supplement it. In the event he did not do so. I do not aproach the determination of the application on the basis that the plaintiff has been prejudiced by any change in the defendant’s position with respect to the costs of the extension application (as was put) nor by a consideration of the orders which have been made in other proceedings arising out of the Melbourne/Voyager collision.

11 In the defendant’s submission the principles to be applied in determining the present application are set out in the dissenting judgment of Basten JA in Commonwealth of Australia v Smith [2005] NSWCA 478 at [213] and following. In particular, the defendant relied on his Honour’s observation at [219]:

It would seem to follow that where opposition is reasonable there should either be no order as to costs or the prospective defendant should have its costs, although unsuccessful.

In the defendant’s submission, an analysis of Santow JA’s judgment at [158] – [160] demonstrates that his Honour accepted and applied the same principles, albeit that he arrived at a different result.

12 I do not understand either Santow JA or Basten JA to have been laying down a principle in the confined terms for which the defendant contended. In Commonwealth v Smith the Court was concerned with whether the primary judge’s discretion had miscarried in making an order that the defendant pay the costs of the extension application. In this context Santow JA concluded that it would have been open to the primary judge to have found that the conduct of the defendant in the circumstances of that case was unreasonable. At [160] his Honour observed that no rule binds the judge to deny costs to an applicant for extension of the limitation period and that the making of the costs order is a matter of practice and procedure within the discretion of the primary judge. Basten JA went on, in the paragraph on which reliance is placed, to note the order made by the Court of Appeal in Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497. The Court in that case found that the primary judge had erred in dismissing an application for an extension of time. Orders were made in the Court of Appeal extending the period and providing that the costs of the motion before the primary judge be costs in the plaintiff’s action. As Basten JA noted, this was an order in terms similar to that made in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116. Unlike in Nowlan, there was no suggestion in Williams that the respondent to the application had acted unreasonably in opposing it.

13 The plaintiff did not allow himself to get out of time. Master Malpass found that the plaintiff was unaware of the nature or extent of his injury prior to September 1995. The proceedings were commenced by statement of claim which was filed on 29 November 1995. The plaintiff succeeded on his claim. I have concluded that in the circumstances the costs of his extension application should be borne by the defendant.

ORDER
The defendant is to pay the plaintiff’s costs of the application for an extension of the limitation period which were reserved by Master Malpass on 27 July 2000.

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