Hatzigeorgiou v Baker

[1999] NSWSC 171

CITATION:	Hatzigeorgiou v Baker [1999] NSWSC 171
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	11670/90
HEARING DATE(S):	5 March 1999
JUDGMENT DATE:	10 March 1999
PARTIES :	Milton Hatzigeorgiou and Elias Hatzigeorgiou, Executors in the Estate of the Late Con Hatzigeorgiou (Plaintiffs) Warwick Baker (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	A. Howen (Plaintiffs) R. Kaye (Defendant)
SOLICITORS:	Photios Vouroudis & Co (Plaintiffs) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Costs
ACTS CITED:	Workers' Compensation Act
DECISION:	See para 10

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 10 March 1999

11670/90 MILTON HATZIGEORGIOU AND ELIAS HATZIGEORGIOU, EXECUTORS IN THE ESTATE OF THE LATE CON HATZIGEORGIOU v WARWICK BAKER

JUDGMENT
1 HIS HONOUR : On 3 March 1999 I assessed damages in this matter at $105,000 and directed the entry of judgment for that amount. On that date I also made orders as to costs. Accepting a submission by Mr Kaye to that effect, I ordered that the plaintiffs should bear the defendant’s costs thrown away by reason of the vacation of the hearing appointed for 11 February 1997. I otherwise ordered the defendant to pay the plaintiffs’ costs.
2 Later on 3 March 1999 counsel for the defendant approached my associate and asked that the matter be relisted for argument on the question of costs and the matter was relisted for this purpose on 5 March 1999. On that date I was asked by Mr Kaye to revisit the issue of costs and to vary the order made two days previously.
3 Judgment has not of course been entered and the Court has power to entertain Mr Kaye’s application. Indeed, Mr Howen did not submit to the contrary. As a matter of practice it is plainly desirable that counsel should address any submissions they wish to make as to costs before judgment is delivered unless for some reason this is not practicable. The legislative scheme under the Motor Accidents Act, 1988, and s 73 in particular, renders unavoidable in proceedings to which that Act applies a further hearing after the publication of an assessment of damages in order that interest be considered. In cases governed by that Act costs are generally then considered at the same time as interest. A similar procedure is followed where damages are assessed under the Workers’ Compensation Act, 1987 because s 151M(4) requires consideration of interest. Again, it is only practicable to consider interest after damages have been assessed. Once again costs are dealt with at the same time as interest.
4 Whilst the statutory schemes to which I have referred inevitably require additional court time and costs to address the issues to which I have referred, the present case is one in which no such statutory complication exists and it is regrettable that counsel did not fully argue costs considerations at the conclusion of the hearing or, alternatively, request that costs be reserved. I make this observation not to criticise counsel in this case but to emphasise the desirability, as a matter of routine procedure, of avoiding a further hearing and hence further costs merely to argue about costs, unless the circumstances of the particular case require that such argument be deferred until after reasons for judgment have been published. If there is a perceived need to defer arguing costs then the court should be asked to reserve costs.
5 However, in the circumstances of this case Mr Kaye has persuaded me that I should review the order for costs which I made. Whilst I had understood that the only special order as to costs he sought was that asked for in the submissions at the end of the hearing, and concerning the costs of 11 February 1997, I accept that Mr Kaye misunderstood the situation and believed that he was going to be given some later opportunity to put forward submissions on costs.
6 Mr Kaye has now had that opportunity, and notwithstanding what Mr Howen had to say, I am persuaded that there is considerable merit in Mr Kaye’s argument. The hearing before this Court occupied eight sitting days. Much of the hearing time was occupied on issues upon which the plaintiffs did not succeed. The plaintiffs’ case was that because of the defendant’s negligence, the late Mr Hatzigeorgiou was deprived of the benefit of access to his rights under the Workers’ Compensation Act, and the damages should be calculated by reference to the value of such rights. The plaintiffs’ case so framed did not succeed by reason of my finding on the relevant causation issue. An alternative basis advanced for the assessment of damages also failed.
7 Mr Kaye referred to an offer of compromise that had been made by the defendant in the past but that was of no avail to the defendant because it was for a lesser sum than I awarded, and indeed it represented a lesser sum than I would have awarded at the time that the offer was made. It seems to me that the defendant can draw no comfort from that offer of compromise in the circumstances.
8 However, upon reflection I accept Mr Kaye’s submission that it would be unfair to the defendant if the plaintiffs recovered all their costs, having regard to the issues on which they failed and the time occupied on the hearing in the pursuit of those unsuccessful issues.
9 I have concluded that it is just to restrict the defendant’s exposure for the plaintiffs’ costs upon the hearing to a liability for sixty percent of such costs only, with such liability to be determined on a party and party basis. I do not intend to limit the costs recoverable on a party and party basis prior to the commencement of the hearing in respect of which the defendant is to pay 100% of such costs on a party and party basis. The restriction is limited to the hearing costs incurred between 15 February 1999 and 24 February 1999, both days inclusive. I was asked to consider excluding any provision for the expenses of calling former Judge McGrath and Mr O’Halloran because their evidence was directed at issues irrelevant to the basis upon which damages were ultimately assessed. I do not propose to make an order directed specifically at the costs associated with calling those witnesses, but I have taken the submissions concerning them into account in fashioning the costs order I now consider appropriate.
10 I vary the order in paragraph 3 of the formal orders expressed on 3 March 1999 and that costs order I now express as follows:
3. Save for such costs, I order the defendant to pay the plaintiffs’ costs of the cause on a party and party basis, but in respect of the costs incurred for the hearing between 15 February 1999 and 24 February 1999, both days inclusive, I order the defendant to pay only sixty percent of such plaintiffs’ costs.

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