Kathleen Abrahams v RTA

[2006] NSWDC 20

CITATION:	Kathleen Abrahams v RTA and Others [2006] NSWDC 20
HEARING DATE(S):	7 September 2006
JUDGMENT DATE:	7 September 2006
EX TEMPORE JUDGMENT DATE:	09/07/2006
JUDGMENT OF:	Rolfe DCJ
DECISION:	See paragraphs 1-9 of Orders section of Judgment
CATCHWORDS:	Costs Orders - Two Defendants represented by one solicitor and counsel - Plaintiff succeeds against one Defendant but not the other - Rule of Thumb - Costs that should be paid on an aliquot basis
CASES CITED:	Rogers v Kabriel (No. 2) 1999 NSW SC 474 at 16
PARTIES:	Kathleen Abrahams (Plaintiff) Roads and Traffic Authority of New South Wales (1st Defendant) Chubb Security Australia Pty Ltd (2nd Defendant) David Collins (3rd Defendant)
FILE NUMBER(S):	2248/05
COUNSEL:	M Fraser (Plaintiff) R Cavanagh (1st & 2nd Defendants) D Ronzani (3rd Defendant)

JUDGMENT

1 HIS HONOUR: The Court delivered its reasons for judgment in this matter on 29 August 2006 and directed the parties to bring in short minutes today to give effect to the Court’s reasons.

2 First of all, as between the plaintiff and the first defendant, there will be a verdict and judgment for the first defendant.

3 As to the remaining matters, the Court has received written submissions from the plaintiff’s counsel dated 4 September 2006. The submissions set out the calculations which have been done to give effect to the Court’s reasons. The parties agree that the figure which the plaintiff’s counsel put in his submissions for future wage loss and superannuation in the amount of $60,000 was incorrect and it should be $65,400. The arithmetic has otherwise not been contested by the second and third defendants.

4 Accordingly, as between the plaintiff and the second defendant, the plaintiff’s damages are as follows;

Non Economic Loss - $41,500
Past Out of Pocket Expenses - $7,609
Future Out of Pocket Expenses - $5,000
Past Wage Loss - $ 7,744
Past Superannuation Loss - $450
Future Wage Loss and Superannuation Loss - $65,400
Total - $127,703

5 In the result, there will be a verdict and judgment for the plaintiff against the second defendant in the amount of $127,703.

6 As between the plaintiff and the third defendant, the damages are as follows:

Past Out of Pocket Expenses - $7,609
Future Out of Pocket Expenses - $5,000
Past Wage Loss - $7,244
Past Superannuation Loss - $450
Future Wage Loss and Superannuation Loss - $65,400
Total - $85,703

7 In the result, there will be a verdict of judgment for the plaintiff against the third defendant in the amount of $85,703.

8 On the question of costs, counsel for the plaintiff submitted that the first defendant should either pay its own costs or they should be paid by the second defendant. I have taken into account his written submissions on the matter but I do not accept them. On the face of it, the first defendant succeeded and is entitled to costs. There is no proper basis for the second defendant to be ordered to pay those costs.

9 At the trial, the first and second defendants were represented by the same solicitors and counsel. The Court file discloses that by 1 August 2006 Pamela Anne Madafiglio of Minter Ellison had been appointed to act for both the first and second defendants. The position before that date was that each of the first and second defendants was represented separately.

10 After 1 August 2006 there is no evidence before the Court as to the arrangements made between the first and second defendants concerning costs.

11 As a starting point therefore, it should be assumed that, after 1 August 2006, each of the first and second defendants would be liable to pay an aliquot share of the costs of the proceedings, with the result that, if one of those defendants was successful, as the first defendant in fact was in this case, the costs order in favour of the first defendant ought be that the plaintiff pay it an aliquot part of the total costs after 1 August 2006. As Young J, (as he then was) said in Rogers v Kabriel (No. 2) 1999 NSWSC 474 at 16, this approach is only a rule of thumb and not a rule which necessarily must be applied in each case. For example, the rule of thumb would not apply if there was evidence before the Court of the exact arrangement that had been made by the first and second defendants with their solicitors Minter Ellison, particularly where the plaintiff was aware of that arrangement.

12 However, as I have said, the only evidence before the Court is that prior to 1 August 2006 the first and second defendants were separately represented and that after that date they were both represented by Minter Ellison.

13 Taking these matters into account, the inference I draw is that the first defendant was liable to pay its own costs up to 1 August 2006, but thereafter was only liable to pay one half of the costs of the proceedings, because it was sharing those costs with the second defendant. I will therefore apply the rule of thumb on that basis and make the following orders:

1. As between the plaintiff and the first defendant, order the plaintiff to pay the first defendant’s costs of the proceedings up to and including 1 August 2006 on the ordinary basis; such costs to be agreed or assessed. Thereafter, order the plaintiff to pay one half of the first defendant’s costs on the ordinary basis; such costs to be agreed or assessed.

2. Order the second defendant to pay the plaintiff’s costs of the proceedings on the ordinary basis; such costs to be agreed or assessed.

14 On the question of costs as between the plaintiff and the third defendant, although counsel for the plaintiff submitted that the third defendant ought pay the plaintiff’s costs on an indemnity basis, in my opinion there are no exceptional circumstances which would warrant the Court making such an order and departing from the usual order.

15 Accordingly the Court’s order is as follows:

3. Order the third defendant to pay the plaintiff’s costs of the proceedings on the ordinary basis; such costs to be agreed or assessed.

16 As between the parties to the respective cross claims, by the consent of those parties, I make the following orders:

4. Judgment for the third defendant on the first cross claim against the second defendant; order the second defendant to contribute $63,079.20.

5. No order as to costs of the first cross claim.

6. Judgment for the second defendant on the second cross claim against the third defendant; order the third defendant to contribute $63,703.80.

7. No order as to costs of the second cross claim.

8. Dismiss the third cross claim with no order as to costs.

17 In addition:

9. I direct that the exhibits be retained in the registry for a further twenty eight days.