Kafadar v Insurance Australia Ltd t/as NRMA Insurance
[2018] ACTSC 183
•21 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kafadar v Insurance Australia Ltd t/as NRMA Insurance |
Citation: | [2018] ACTSC 183 |
Hearing Date: | On the papers |
Submissions last received: | 23 May 2018 |
DecisionDate: | 21 June 2018 |
Before: | McWilliam AsJ |
Decision: | The plaintiff is to pay the defendants’ costs of the application up to and including 13 April 2018, with such costs not to be recoverable pending the conclusion of the proceedings. |
Catchwords: | COSTS – no point of principle |
Legislation Cited: | Court Procedures Act 2006 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 1701, 1721 |
Cases Cited: | DN v Paton [2018] ACTSC 20 Lewis v Chief Executive Department of Justice and Community Safety and Ors (No 2) [2014] ACTSC 196 |
Parties: | Kristofor Kafadar (Plaintiff) Emily Larkin (First Defendant) Insurance Australia Limited trading as NRMA Insurance ABN 11 000 016 722 (Second Defendant) |
Representation: | Counsel S Sharmin (Plaintiff) E Reilly (Defendants) |
| Solicitors Ken Cush & Associates (Plaintiff) Moray & Agnew Lawyers (Defendants) | |
File Number: | SC 427 of 2015 |
These reasons concern the costs of an application in proceeding I heard on 13 April 2018 brought by the plaintiff for orders appointing a person to take evidence in these proceedings on Commission in London in the United Kingdom.
The plaintiff had sought that such person ought to be the trial judge, although the matter was yet to be fixed for hearing and the parties were unable to take a date for a trial of two weeks until 2019.
The substantive proceedings concern a motor vehicle accident which the plaintiff contends has left him unable to work in his previous employment as a chef. Liability has been admitted in this matter, and the nature of the evidence proposed to be taken in London was from a number of expert witnesses on the question of damages relating, as I understood it, to the plaintiff’s employment opportunities and thus earning potential. The evidence was said to be critical to the plaintiff’s claim, which was submitted to potentially run to three million dollars, depending on the compensable loss per week ultimately found. Among the arguments made for the plaintiff was the submission that while the evidence could be taken by audio-visual link and that was the less costly and more convenient course, given the importance of the evidence and that the defendant vigorously disputes the evidence of the overseas witnesses, it was no substitute for the trial judge, the cross-examiner and the witness being in the same room when the evidence was given.
I dismissed the application on the basis – as I said at the time, although not in precisely the terms expressed here – that I did not consider it in the interests of justice (having had regard to the requirements of s 5A of the Court Procedures Act 2006 (ACT)) to make an order binding the trial judge to a particular course of hearing for a case that was not yet set down and would not be heard for almost a year, and where the facts of the case were distinguishable from the recent decision of Burns J in DN v Paton [2018] ACTSC 20, who had made such an order in circumstances where the plaintiff in those proceedings actually resided in London and there was medical evidence indicating the potential exacerbation of the plaintiff’s poor mental health in requiring her to undertake international travel to be cross-examined.
Here, there was no reason why the witnesses could not travel except that the plaintiff took the view he could not compel them to attend a hearing in Australia. To the extent that the proposed evidence was being given by expert witnesses, who are being well paid for their services, I did not understand how they could agree to write a report yet not be cross-examined about it at the hearing. However, ultimately the decision did not turn on that submission.
I noted at the time the application was dismissed that the plaintiff here was not prevented by any interlocutory judgment by me from making a further application to the trial judge if the circumstances required it.
No party made any application for costs when the application was disposed of. It seems this was an oversight, for the defendants later sought leave to have the opportunity to be heard on costs and the parties have subsequently filed written submissions, and are content for the issue to be dealt with on the papers.
The competing submissions on costs may be described as follows. The defendants on the one hand seek their costs, on the basis that costs follow the event. They accept that such costs would not be recoverable until the conclusion of the substantive proceedings, pursuant to r 1701(2) of the Court Procedures Rules 2006 (ACT) (Rules).
The plaintiff, on the other hand, seeks orders either that costs be in the cause of the substantive proceedings, or that the parties each bear their own costs of the application, focusing (it seemed to me) more on the history of the application, rather than the result when it was finally heard and determined.
Cost are in the discretion of the Court: r 1721 of the Rules. Having read the submissions, there is no reason to depart from the usual order for costs being made. The defendants did not change their position or conduct themselves on the application in a manner that would suggest they should be deprived of their costs, save as to the failure to make the application for costs at the appropriate time, which has necessitated further work for the parties and for the Court in returning to an application that had been concluded. They will not be entitled to any costs of the application incurred after 13 April 2018.
The plaintiff relied on a statement by Refshauge J in Lewis v Chief Executive Department of Justice and Community Safety and Ors (No 2) [2014] ACTSC 196 at [13] to the effect that the discretion must be exercised judicially and the result should be fair, having regard to the particular facts and circumstances of the proceeding.
Part of the facts and circumstances relied upon by the plaintiff here related to when the application first came before the Court for hearing on 2 November 2017. At that stage, the application was adjourned as the parties agreed it was premature to deal with the issue at that time. For example, the evidence had not concluded and a formal mediation was yet to take place. If the matter settled, there would be no need to consider whether evidence should be taken overseas. The parties were able on that day to use part of the allocated hearing time to agree on directions timetabling the progress of the matter to the point where it would be ready to take a hearing date.
I do not accept the plaintiff’s submission that it was only the outstanding evidence of the defendants that prevented the application from being heard on that day, but even if that were the case, as submitted by the defendants, they were not in default of any order to file evidence before the hearing of the application. The parties returned to Court for directions on 20 February 2018 seeking by consent to have the application listed after the date of a private mediation, which rather suggests that the mediation was also a critical factor in the application not proceeding on 2 November 2017.
However, this is rather a moot point in the present context, because the heart of the plaintiff’s argument was really that any costs incurred on 2 November 2017 were really costs of a directions hearing and not costs of the application and that is why costs in the cause were appropriate. Those are matters for assessment, when considering what costs were properly and reasonably incurred and whether they are properly referrable to the application, or whether they should be reduced because the costs were in part incurred for a different purpose.
The same submission appears to have been made in relation to the hearing on 13 April 2018 and the same reasoning applies. The fact that directions on the matter were made on various occasions does not speak to who should bear the costs of the application.
As part of that argument, the plaintiff further refers to the fact that at the outset of the hearing on 13 April 2018, his counsel sought that, rather than hear the application, the matter should be set down for hearing and the application simply deferred until the hearing before the trial judge. The plaintiff then submits that “the application proceeded and was in essence seeking the Court’s guidance on how the proceeding should be heard.”
It is perhaps trite to observe that parties who file applications in proceedings must be prepared to have them determined. The Court is not a golf course on which a party might choose to play on any given day. The hearing of the application had already been adjourned once and the date specifically listed to accommodate the parties in their settlement negotiations. Any respondent to an application is entitled to certainty on the issue raised. If it appears to the parties on reflection that the issue does not yet call for determination and the parties cannot resolve it between themselves, then the application should be withdrawn. The plaintiff had more than sufficient opportunity to withdraw the application prior to it being heard, but did not. As can be seen from the foregoing, the plaintiff’s submission at the outset of the hearing on 13 April 2018 plainly anticipated the fate of the application and foreshadowed part of the reasons for that outcome. That being the case, there is no reason why the defendants should have to bear the costs of appearing to obtain a result that the plaintiff had already contemplated.
Contrary to the plaintiff’s submission, the matter has not been left unresolved. It has been determined in the defendants’ favour. It remains for the plaintiff to make a further application if the circumstances change or warrant revisiting the question at a later date.
For these reasons, the orders of the Court are:
1. The plaintiff is to pay the defendants’ costs of the application up to and including 13 April 2018, with such costs not to be recoverable pending the conclusion of the proceedings.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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