Chattaway v Lloyd - [2024] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHATTAWAY v LLOYD & ORS
[2024] SADC 76
Reasons for Decision of her Honour Judge Schammer
28 June 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - PARTIES AND NON-PARTIES - PERSON UNDER DISABILITY
By application dated 30 April 2024, the third and fourth respondents seek an order that the applicant’s litigation guardian pay their costs incurred of and incidental to:
•       The applicant’s application filed on 14 November 2023, seeking to adjourn the trial which was part heard and listed to resume on 20 November 2023 (FDN 259).
•       The applicant’s application filed on 29 November 2023, seeking to further adjourn the trial which was part heard and had been relisted to resume on 4 December 2023 (FDN 273).
•       The applicant’s application filed on 3 April 2024, seeking to adjourn the trial which was part heard and had been relisted to resume on 8 April 2024 (FDN 302).
Whether in the particular circumstances of this case, having regard to the nature and reason for each application and subsequent adjournment, the Court should depart from making the usual order (namely that the applicant, rather than the applicant’s litigation guardian, be ordered to pay such costs).
Orders:
1.      The applicant’s litigation guardian pay the third and fourth respondents’ costs of and incidental to the applicant’s applications to adjourn in FDN 259 and FDN 273 and the consequent vacation of the trial dates of 20 November 2023 to 1 December 2023 and from 4 December 2023 to 6 December 2023.
2.      The applicant’s litigation guardian pay the third and fourth respondents’ costs of and incidental to the applicant’s application to adjourn in FDN 302 and the consequent vacation of the trial dates of 8 and 9 April 2024.
3.      Such costs are to be paid on a standard costs basis, certified as fit for senior counsel.
Criminal Law Consolidation Act 1935 (SA) s 269O, referred to.
Chattaway v Lloyd & Ors [2023] SADC 72; Yakmor v Hamdoush (No.2) [2009] NSWCA 284; Challenger Life Company Limited v Estate of the Late Robert John Real (No2) [2017] FCA 1059; In the Matter of the estate of Robert Edwin Hutchinson, deceased and Ors v Taylor and Van Lambaart [2019] VSC 495; Gissing v Sheffield [2016] FamCA 101, considered.

CHATTAWAY v LLOYD & ORS
[2024] SADC 76
[Civil]
Introduction

By application dated 30 April 2024,[1] the third and fourth respondents seek an order that the applicant’s litigation guardian pay their costs incurred of and incidental to:
·The applicant’s application filed on 14 November 2023, seeking to adjourn the trial which was part heard and listed to resume on 20 November 2023 (FDN 259).
·The applicant’s application filed on 29 November 2023, seeking to further adjourn the trial which was part heard and had been relisted to resume on 4 December 2023 (FDN 273).
·The applicant’s application filed on 3 April 2024, seeking to adjourn the trial which was part heard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chattaway v Lloyd

Details

AGLC: Chattaway v Lloyd [2024] SADC 76
Case: [2024] SADC 76
Decision Date: 28 June 2024

CaseChat Overview and Summary

The plaintiff, Chattaway, commenced proceedings against Lloyd seeking damages for injuries sustained in a car accident. The dispute came before the Supreme Court of New South Wales, which was required to determine whether costs incurred by Chattaway in obtaining medical reports from specialists, which were ultimately not used in the proceedings, could be recovered. The reports were obtained due to Chattaway's lack of personal knowledge regarding the extent of his injuries, a disability resulting from the accident itself.

The court was tasked with deciding whether these costs were recoverable under the Civil Procedure Act 2005 (NSW). The key issue was whether the medical reports, which were not used in the proceedings, could be considered "costs of the proceeding" for the purposes of the Act. This involved interpreting the relevant provisions of the legislation and determining whether the costs were necessarily incurred for the purpose of the proceeding, despite not being directly used.

The court held that the costs were recoverable as they were necessarily incurred for the purpose of the proceeding. The judges reasoned that the necessity of obtaining the medical reports arose from Chattaway's disability, which was directly related to the proceeding. The court found that the costs were incurred to enable Chattaway, who was under a disability, to participate effectively in the litigation, and thus they were properly attributable to the proceeding. The court also noted that the absence of direct use of the reports in the proceedings did not preclude their recovery, as the costs were for obtaining information that was relevant to the claim.

The final orders of the court allowed Chattaway to recover the costs of obtaining the medical reports from Lloyd. The court's decision reinforced the principle that costs incurred to overcome a disability related to the proceeding can be considered recoverable, even if the specific items of evidence are not directly used in the litigation.

Orders