Hamilton v State of New South Wales [No 2]

[2013] NSWSC 1533

Supreme Court

New South Wales

Medium Neutral Citation:	Hamilton v State of New South Wales [No 2] [2013] NSWSC 1533
Hearing dates:	Written submissions
Decision date:	22 October 2013
Before:	Bellew J
Decision:	1. The plaintiff is to pay the defendant's costs of the notice of motion.
Catchwords:	PRACTICE AND PROCEDURE -
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Hamilton v State of New South Wales [2013] NSWSC 1437 Oshlack v Richmond River Council (1998) 193 CLR 72
Category:	Costs
Parties:	Thomas David Hamilton - Plaintiff State of New South Wales - Defendant
Representation:	Mr D Morgan - Plaintiff Mr S Woods - Defendant Garling Lawyers - Plaintiff Makinson & d'Apice Lawyers - Defendant
File Number(s):	2012/185616
Publication restriction:	Nil

Judgment

Introduction

1. In this matter the defendant sought an order pursuant to rule 23.4 of the Uniform Civil Procedure Rules requiring the plaintiff to undergo an MRI scan of the brain.

1. On 30 September 2013 I determined that the defendant was entitled to the order sought (see Hamilton v State of New South Wales [2013] NSWSC 1437). When the matter came before me on 4 October 2013 I made orders accordingly. At their request, I provided the parties with an opportunity to make submissions on the issue of costs. This judgment deals with that issue.

Submissions of the parties

1. Counsel for the defendant submitted that the necessary starting point was that costs should follow the event and that accordingly, the defendant was entitled to the costs of the motion unless it appeared that some other order ought be made (see generally Oshlack v Richmond River Council (1998) 193 CLR 72 at [96]).

1. In support of his submission that an order should be made requiring the plaintiff to pay the defendant's costs, counsel for the defendant relied upon the following matters:

(i)   the defendant had been wholly successful on its notice of motion;

(ii)   the evidence before me on the hearing of the notice of motion (which was summarised at [14]-[21] of my judgment) established that prior to the filing of the motion, the defendant had attempted to resolve the issue on a number of occasions, on each of which the plaintiff refused to consent to the order sought;

(iii)   it was the position adopted by the plaintiff which led to the necessity to bring the motion;

(iv)   in the circumstances, and bearing in mind (inter alia) the evidentiary onus placed upon a defendant to disentangle alternative causes for a plaintiff's condition, the defendant had no option other than to bring the motion.

1. Counsel for the plaintiff submitted that I should order that:

(i)   the costs of the motion be costs in the cause; or alternatively

(ii)   each party bear its own costs.

1. Although he acknowledged that the defendant was successful on the notice of motion, counsel submitted that the position which had been adopted by the plaintiff, firstly in refusing to undergo MRI scanning and secondly in opposing the notice of motion, was "not an unreasonable one". This, counsel submitted, justified the making of an order other than that which was sought by the defendant.

1. In support of what he submitted was the reasonableness of the position adopted by the plaintiff, counsel pointed to the fact that the plaintiff had previously undergone MRI scanning of his brain. It was submitted that in these circumstances, it was not unreasonable for the plaintiff to oppose further MRI scanning.

1. Counsel further submitted that the evidence of medical opinion which was adduced in support of the necessity for a further MRI scan was "a little thin". In making that submission, counsel pointed to the observations at [55] of my judgment.

1. Finally, counsel for the plaintiff submitted that it was inappropriate to order costs against the plaintiff in circumstances where there was a large disparity in the respective resources of the parties. He submitted that if the plaintiff was ultimately successful in his claim against the defendant, it would be just to have the costs of the notice of motion borne by the defendant.

THE RELEVANT STATUTORY PROVISIONS

1. Rule 42.1 of the Uniform Civil Procedure Rules is in the following terms:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

1. Further, s. 98 of the Civil Procedure Act 2005 is in the following terms:

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 other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

(5) The powers of the court under this section apply in relation to a married woman, whether as party, tutor, relator or otherwise, and this section has effect in addition to, and despite anything in, the Married Persons (Equality of Status) Act 1996 .

(6) In this section, "costs" include:

(a) the costs of the administration of any estate or trust, and

(b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and

(c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed.

CONSIDERATION

1. A number of the general principles in relation to an award of costs were set out in the submissions of the defendant and, in any event, are well known. As counsel for the defendant pointed out, the relevant starting point having regard to rule 42.1 is that costs follow the event unless it appears to the court that some other order ought be made. In my view, in considering whether some other order should be made in the present case the following matters are significant.

1. Firstly, the defendant was wholly successful in obtaining the order which it sought in the notice of motion.

1. Secondly, the evidence which was before me on the hearing of the notice of motion established that the defendant's solicitor wrote to the plaintiff's solicitor on no less than five occasions prior to the filing of the notice of motion requesting that the plaintiff agree to undergo further scanning. The plaintiff refused to give his consent. Needless to say, the plaintiff was completely within his rights to take such advice as may have been given to him, and to instruct his solicitors that he did not agree to further scanning. However, the fact remains that the plaintiff was given a series of opportunities to avoid the necessity to bring the motion. In this regard I do not accept the submission advanced on behalf of the plaintiff that the stance adopted in the face of that correspondence was not an unreasonable one. That submission was largely based upon the proposition that the plaintiff had previously undergone MRI scanning. Such a submission completely overlooks the purpose for which the further scan was sought. That purpose was more than adequately explained in the correspondence which was forwarded to the plaintiff's solicitor before the motion was filed.

1. As to the medical opinion which was relied upon in support of the making of the order, I concluded at [55] that such opinion was somewhat imprecise. It was this conclusion which formed the basis of the submission made by counsel for the plaintiff that such opinion was "a little thin". However one may describe the evidence, that is not a matter which supports a departure from the general rule that costs follow the event. The more relevant consideration is that I concluded that even though the evidence lacked precision, it was nevertheless sufficient to satisfy the relevant test.

1. Finally, I am not satisfied that any disparity in resources as between the parties justifies a departure from the general principle that costs ought follow the event. Apart from citing the disparity, no substantive submission was made as to why that circumstance was said to justify a departure from the general rule.

1. The simple fact of the matter is that the plaintiff repeatedly, through his solicitors, refused to consent to a further scan. That necessitated the defendant doing what it had foreshadowed it would do, and filing a notice of motion. Ultimately, the plaintiff was unsuccessful in his opposition to that motion. In these circumstances there is no reason why costs ought not follow the event.

CONCLUSION

1. I make the following order:

(1)   The plaintiff is to pay the defendant's costs of the notice of motion.

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Decision last updated: 28 October 2013