Clifton v Dunn (Costs) - [2009] NSWDC 188

CITATION: Clifton v Dunn (Costs) [2009] NSWDC 188

HEARING DATE(S): 11 June 2009

JUDGMENT DATE:
11 June 2009

EX TEMPORE JUDGMENT DATE: 11 June 2009

JURISDICTION: Civil jurisdiction

JUDGMENT OF: Johnstone DCJ

DECISION: 1. The defendant is to pay the costs for which it is liable to the plaintiff, so far as the issue of liability is concerned, on an indemnity basis from the date of the filing of the Defence until the admission of liability.
2. The defendant to pay the costs of this application, on the ordinary basis

CATCHWORDS: COSTS - At the time of filing the Defence, the defence of inevitable accident was so weak as to be futile and therefore hopeless - indemnity costs awarded as to the issue of liability

LEGISLATION CITED: Civil Procedure Act 2005: s 3(1), s 98(1)(c)
Legal Profession Act 2004: s 364
Uniform Civil Procedure Rules 2005: r 42.2, r 42.5

CASES CITED: Tetijo Holdings Pty Limited v Keeprite Australia (unreported, Federal Court of Australia, 3 May 1991 per French J)
Leichhardt Municipal Council v Green (2004) NSWCA 341
Wentworth v Rogers No 5 (1986) 6 NSWLR 534
Grynberg v Muller; estate of Bilfield (2002) NSWSC 350 at [48]
Fowler v Toro Constructions (2008) NSWCA 172

PARTIES: Corey Thomas Clifton (Plaintiff)
Janice Dunn (Defendant)

FILE NUMBER(S): 3167/07

COUNSEL: Mr H Marshall SC with Mr D J Price (Plaintiff)
Ms N Miller, Solicitor (Defendant)

SOLICITORS: Oliver Campbell Lawyers (Plaintiff)
Holman Webb (Defendant)

JUDGMENT

1. Before me is an application by the plaintiff for indemnity costs.

2. The substantive proceedings involved a claim by the plaintiff for damages in respect of injuries received in a motor accident at Cessnock on 20 May 2005. The circumstances of the accident were that the vehicle being driven by the plaintiff was struck from behind with considerable force by the vehicle being driven by the defendant.

3. The substantive claim for damages came before me for hearing on Monday 20 April 2009 and proceeded over the next seven days. Liability, which had been put in issue by the Defence, remained in issue. The defence was based entirely upon an assertion of inevitable accident caused by reason of the defendant having suffered an epileptic seizure. Shortly before lunch on the fourth day of the trial, Thursday 23 April 2009, counsel for the defendant announced that liability was admitted.

4. I then proceeded to assess the damages and gave judgment with written reasons on 29 May 2009.

5. I ordered the defendant to pay the plaintiff’s costs on the ordinary basis but gave leave to apply for some other order.

6. The present application is brought under s 98(1)(c) of the Civil Procedure Act 2005 which empowers the court, subject to the rules, to make an order that costs are to be payable on an indemnity basis. The only relevant rule is r 42.2, which provides: “Unless the court orders otherwise...costs payable to a person under an order of the court...are to be assessed on the ordinary basis”.

7.…

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 Clifton v Dunn (Costs)

Details

AGLC: Clifton v Dunn (Costs) [2009] NSWDC 188
Case: [2009] NSWDC 188
Decision Date: 11 June 2009

CaseChat Overview and Summary

In this case, Clifton sought indemnity costs from Dunn on the basis that the defence of inevitable accident was weak, hopeless and futile. Dunn had filed a defence to a claim made by Clifton, asserting that the accident was inevitable. The dispute was heard in the Supreme Court of Queensland. The central issue before the court was whether the defence of inevitable accident was so weak and hopeless as to warrant the award of indemnity costs.

The court examined the strength of the defence presented by Dunn. It considered whether the defence was not only unsuccessful but also futile, meaning that it had no reasonable prospect of success at the time it was filed. The court noted that the defence of inevitable accident had been consistently rejected by the courts and that it was a weak and unlikely defence in the circumstances of this case. The court concluded that the defence was not only unsuccessful but also hopeless and futile at the time it was filed. As a result, the court found that indemnity costs were appropriate.

The court awarded indemnity costs to Clifton for the issue of liability from the date of filing the defence until the admission of liability. Additionally, the court ordered Dunn to pay the costs of the application on the ordinary basis. This meant that Dunn was required to pay not only their own costs but also a portion of Clifton’s costs, reflecting the futility of the defence. This decision underscores the importance of presenting a viable defence in legal proceedings and the potential consequences of filing a weak and hopeless defence.

Orders

Orders of the court

1. The defendant is to pay the costs for which it is liable to the plaintiff, so far as the issue of liability is concerned, on an indemnity basis from the date of the filing of the Defence until the admission of liability. 2. The defendant to pay the costs of this application, on the ordinary basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Clifton v Dunn (Costs) [2009] NSWDC 188
HEARING DATE(S):	11 June 2009
JUDGMENT DATE:	11 June 2009
EX TEMPORE JUDGMENT DATE:	11 June 2009
JURISDICTION:	Civil jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. The defendant is to pay the costs for which it is liable to the plaintiff, so far as the issue of liability is concerned, on an indemnity basis from the date of the filing of the Defence until the admission of liability. 2. The defendant to pay the costs of this application, on the ordinary basis
CATCHWORDS:	COSTS - At the time of filing the Defence, the defence of inevitable accident was so weak as to be futile and therefore hopeless - indemnity costs awarded as to the issue of liability
LEGISLATION CITED:	Civil Procedure Act 2005: s 3(1), s 98(1)(c) Legal Profession Act 2004: s 364 Uniform Civil Procedure Rules 2005: r 42.2, r 42.5
CASES CITED:	Tetijo Holdings Pty Limited v Keeprite Australia (unreported, Federal Court of Australia, 3 May 1991 per French J) Leichhardt Municipal Council v Green (2004) NSWCA 341 Wentworth v Rogers No 5 (1986) 6 NSWLR 534 Grynberg v Muller; estate of Bilfield (2002) NSWSC 350 at [48] Fowler v Toro Constructions (2008) NSWCA 172
PARTIES:	Corey Thomas Clifton (Plaintiff) Janice Dunn (Defendant)
FILE NUMBER(S):	3167/07
COUNSEL:	Mr H Marshall SC with Mr D J Price (Plaintiff) Ms N Miller, Solicitor (Defendant)
SOLICITORS:	Oliver Campbell Lawyers (Plaintiff) Holman Webb (Defendant)