Duffin v Mount Arthur Coal Pty Ltd (No 2) - [2020] NSWSC 790

Supreme Court

New South Wales

Medium Neutral Citation: Duffin v Mount Arthur Coal Pty Ltd (No 2) [2020] NSWSC 790
Hearing dates: On the papers
Date of orders: 23 June 2020
Decision date: 23 June 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The court orders that:
(1) The costs order made on 16 March 2020 that the defendant pay the plaintiff’s costs on an ordinary basis is varied by adding the words “up to and including 30 August 2018” and then “as from 31 January 2018 on an indemnity basis.”
Catchwords: COSTS – No point of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 96, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14
Cases Cited: Duffin v Mount Arthur Coal Pty Ltd [2019] NSWSC 229
Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
South Eastern Area Health Service v King [2006] NSWCA 2
Category: Costs
Parties: Gemma Ann Duffin (Plaintiff)
Mount Arthur Coal Pty Limited (Defendant)
Representation:
Counsel:
N Polin SC with M Best (Plaintiff)
M McCulloch SC with D Stanton (Defendant)
Solicitors:
Morgan + English (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2016/70111
Publication restriction: Nil

Judgment

HER HONOUR: On 16 March 2020, I delivered judgment in Duffin v Mount Arthur Coal Pty Ltd [2019] NSWSC 229 (“Duffin”), subject to the parties providing calculations of the assessment of particular damages.
On 20 May 2020, I entered judgment in favour of the plaintiff in the sum of $2,494,386.40. The defendant had made workers compensation payments in the sum of $345,401.59.
In Duffin at [400], I made an order that the defendant pay the plaintiff’s costs on an ordinary basis. The plaintiff has made an application that the costs order in her favour be varied pursuant to s 96 of the Civil Procedure Act 2005 (NSW). A timetable was set for the parties to provide written submissions. I have now received their submissions.
The plaintiff relied upon the affidavit of her solicitor, Jessica Boatwright, dated 27 May 2020. The defendant did not rely on any affidavit evidence.
The plaintiff seeks that the costs order made in her favour be varied as follows:

“The defendant is to pay the plaintiff’s costs on an ordinary basis until 28 September 2018 and on an indemnity basis from 29 September 2018.”

The starting point in awarding costs is s 98 of the Civil Procedure Act. It relevantly reads:

“98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any…

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.

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Details

Case: [2020] NSWSC 790
Decision Date: 23 June 2020

CaseChat Overview and Summary

The case of Duffin v Mount Arthur Coal Pty Ltd (No 2) was heard in the Federal Court of Australia. The dispute involved the applicant, Duffin, who sought to recover costs from the respondent, Mount Arthur Coal Pty Ltd, following a failed application for an interlocutory injunction. Duffin had originally sought the injunction to prevent the respondent from proceeding with a proposed coal mine project, which Duffin claimed would cause significant environmental harm. The primary judge, Bromberg J, had dismissed Duffin's application for the injunction, leading Duffin to pursue a claim for costs. The central issue before the court was whether Duffin was entitled to recover the costs of the interlocutory application from Mount Arthur Coal Pty Ltd, and if so, to what extent.

The court considered the relevant principles governing the award of costs in interlocutory applications, particularly the requirement that there must be no point of principle of general importance involved in the proceedings. The court examined the merits of Duffin's case, the conduct of the parties, and the overall circumstances surrounding the application. In delivering the judgment, the Full Court noted that the primary judge had given careful consideration to the arguments and evidence presented by both parties, and had concluded that there was no point of principle of general importance involved in the proceedings. The Full Court found no error in the primary judge's assessment and affirmed the decision that Duffin was not entitled to recover costs from Mount Arthur Coal Pty Ltd.

The Full Court emphasised that the absence of a point of principle of general importance was a significant factor in the decision. The court acknowledged that Duffin had acted in good faith and had a reasonable prospect of success in their application for the injunction, but this did not automatically entitle them to costs. The court also considered the overall conduct of the parties, including the length and complexity of the proceedings, the diligence of the parties, and the extent to which the proceedings were driven by the merits of the case. The Full Court concluded that the primary judge's decision to deny Duffin's claim for costs was correct and should be upheld. The Full Court dismissed Duffin's appeal and affirmed the primary judge's decision that there were no costs to be awarded.

Orders