Duncan v Commonwealth of Australia

[2006] NSWSC 822

CITATION:	Duncan v Commonwealth of Australia [2006] NSWSC 822
HEARING DATE(S):	Written submissions
JUDGMENT DATE :	17 August 2006
JUDGMENT OF:	Bell J at 1
DECISION:	The costs of the plaintiff’s application pursuant to s 60G of the Limitation Act 1969 are costs in the cause
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Ayliffe v The Commonwealth, unreported 2 February 2001 Cavanagh v Commonwealth [2006] NSWSC 382 Commonwealth of Australia v Smith [2005] NSWCA 478 Gregory v Commonwealth [2006] NSWSC 82 Gretton v The Commonwealth, 27 April 2005 Holt v Wynter (2000) 49 NSWLR 128 Lewis v Commonwealth [2005] NSWSC 959 Lymbery v The Commonwealth, 2 June 2005 Shaw v Commonwealth [2005] NSWSC 1027 Stringer v The Commonwealth, 18 November 2004 Wendt v Commonwealth (2006) NSWSC 549 Wood v The Commonwealth, 22 September 2005
PARTIES:	Gordon Ian Duncan (Plaintiff) Commonwealth of Australia (Defendant)
FILE NUMBER(S):	SC 20186/00
COUNSEL:	J Sharpe (Plaintiff) RJ Burbidge QC / D Brogan (Defendant)
SOLICITORS:	Hollows Solicitors (Plaintiff) Australian Government Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 17 August 2006

20186/00 Gordon Ian Duncan v Commonwealth of Australia

JUDGMENT – Re: Costs

1 BELL J: On 7 June 2006 I ordered that the limitation period for the cause of action in this proceeding be extended to the date on which the statement of claim was filed. The parties subsequently filed written submissions on the question of the costs of the application.

2 The Commonwealth submitted that the appropriate order is that the plaintiff pay its costs and, if the Court were not disposed to make that order, that the costs of the application should be the Commonwealth’s costs in the cause.

3 The plaintiff submitted that the Commonwealth should pay his costs of the application. It was submitted that he had been put to strict proof of all aspects of his application and been required to prepare it as though for final hearing. Reliance was placed on the judgment of Kirby J in Wendt v Commonwealth [2006] NSWSC 549. In Wendt his Honour found the opposition to the extension of the limitation period to have been, in the circumstances of that case, unreasonable.

4 I do not consider that the Commonwealth’s opposition to the extension of the limitation period in this case to have been wholly unreasonable. Its opposition was based upon the contention that the plaintiff knew that he suffered injury prior to the expiration of the limitation period because of his symptoms of anxiety and stress and the frequency of his nightmares and that he had sought a discharge from the Navy on medical grounds.

5 The plaintiff submitted that the provisions of s 60L of the Limitation Act 1969 envisage that the usual order for costs in an application under subdivision 2 or 3 is that the plaintiff recover his costs of the application (WS [10]). Section 60L is expressed not to effect any discretion that a court has in relation to costs. It provides that a court hearing an action brought as the result of an order extending the limitation period under subdivision 2 or 3 (which includes an application under s 60G) may reduce the costs that would otherwise be payable to a successful plaintiff on account of the expense to which the defendant has been put because the action was commenced outside the original limitation period. Section 60L deals with the costs of the action. In Commonwealth of Australia v Smith [2005] NSWCA 478 Basten JA observed that these might include the costs of resisting an application if the costs had not been dealt with as a separate matter. I see no warrant for reading the provision as containing an assumption that the usual order with respect to the costs of a successful application to extend the limitation period is that the respondent pay them.

6 In the Commonwealth’s submission the principle to be applied in determining the present application is as stated in Holt v Wynter (2000) 49 NSWLR 128 per Sheller JA at [121]:

Ordinarily a successful applicant, who allowed him or herself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable.

The Commonwealth contended that in Smith both Santow JA (with whose judgment Handley JA agreed) at [159] and Basten JA at [217] – [219] approached the issue of costs in that case conformably with the principle stated in Holt v Wynter . The Court in that case was dealing with a challenge to an order made by the primary judge that the Commonwealth pay the plaintiff’s costs of his successful application to extend time. Santow JA considered that it had been open to the judge to find that the Commonwealth had acted unreasonably in opposing the extension in the circumstances of that case. His Honour observed that the determination of the costs of such an application is a matter of practice and procedure within the discretion of the primary judge (at [160]).

7 Basten JA observed that the principle in Holt v Wynter may be limited to circumstances in which an intention to make a claim arose within time but was not effected before the expiration of the period (at [217]). His Honour went on to discuss the judgment in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 and to say that 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. I do not understand his Honour to have been saying that the discretion was confined to either of these orders. His Honour went on to note the order made by the Court of Appeal in Williams v the Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497. In that case, which did not involve a finding that the conduct of the Minister in opposing the application was unreasonable, the order was that the costs of the application be costs in the plaintiff’s action.

8 In written submissions the Commonwealth contended that, “even in Melbourne/Voyager cases this Court has regularly made orders that plaintiffs pay the costs of the Commonwealth” (WS [3]). In support of this submission reference was made to Ayliffe v The Commonwealth, (unreported) 2 February 2001, Lymbery v The Commonwealth, (unreported) 2 June 2005; Stringer v The Commonwealth, (unreported) 18 November 2004, Gretton v The Commonwealth, (unreported) 27 April 2005; Wood v The Commonwealth, (unreported) 22 September 2005.

9 As the plaintiff noted, in Ayliffe the applicant did not obtain the extension that was sought. In Stringer costs were reserved. In Gretton the order in favour of the Commonwealth followed a concession made by the applicant. The order in Wood was reversed: Wood v Commonwealth of Australia (2006) NSWSC 157, and the order made was that the costs of the motion be costs in the cause. The plaintiff referred to the orders made in Lewis v Commonwealth [2005] NSWSC 959 – costs reserved; Shaw v Commonwealth [2005] NSWSC 1027 – costs reserved; Cavanagh v Commonwealth [2006] NSWSC 382 an order that costs be costs in the cause. The decision in Shaw has since been set aside on appeal: Commonwealth of Australia v Shaw [2006] NSWCA.

10 The plaintiff, wrongly, submitted that the order in Gregory v Commonwealth [2006] NSWSC 82 had been an order that costs be reserved. In that matter the parties were agreed that the costs of the application be the plaintiff’s costs in the cause and I so ordered.

11 To the extent that the Commonwealth submits that the practice consistently followed in this Court in relation to applications to extend the limitation period is as stated in Holt v Wynter, the orders made in the Melbourne/Voyager litigation to which the parties referred me does not support it.

12 This is a case in which the plaintiff did not allow himself to get out of time. In this respect it is like the other Melbourne/Voyager cases to which I was referred.

13 I have concluded the appropriate order in the circumstances of this case to be that the costs of the plaintiff’s motion to extend the limitation period be costs in the cause.

ORDER

14 The costs of the plaintiff’s application pursuant to s 60G of the Limitation Act 1969 are costs in the cause.

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