M v Australian Capital Territory
[2012] ACTSC 43
•March 23, 2012
M v AUSTRALIAN CAPITAL TERRITORY
[2012] ACTSC 43 (23 March 2012)
COSTS – costs of application by plaintiff for leave to amend statement of claim – application for leave amended before hearing of application – factors to be taken into account in exercising discretion as to costs, including minimising complexity and expense in quantifying costs – relative financial position of parties as relevant to postponing recovery of costs until final orders made.
No. SC 444 of 2009
Judge: Master Harper
Supreme Court of the ACT
Date: 23 March 2012
IN THE SUPREME COURT OF THE )
) No. SC 444 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:M
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Master Harper
Date: 23 March 2012
Place: Canberra
THE COURT ORDERS THAT:
the plaintiff pay the defendant’s costs of the application in proceeding filed on 17 March 2011 up to 11 April 2011.
the plaintiff pay half of the balance of the defendant’s costs of the application.
the rest of the defendant’s costs of the application, and half of the plaintiff’s costs of the application from 11 April 2011, be costs in the cause.
recovery of the costs ordered to be paid by the plaintiff to the defendant be postponed until final orders are made in the action.
On 3 February 2012 I handed down reasons for decision in an application by the plaintiff for leave to file and serve a further amended statement of claim. I did not grant that leave in relation to the further amended statement of claim which had been proposed by the solicitors for the plaintiff when the application was filed, but I permitted the plaintiff to provide to the defendant in draft form a further amended statement of claim within twenty-one days, and stood the application over to 2 March for submissions about the draft further amended statement of claim and about costs.
The primary challenge by the defendant to the proposed statement of claim was based on the assertion that it added a new cause of action in circumstances where the limitation period had elapsed. I held that it did not do so.
However, I found that in a number of respects the draft put forward on behalf of the plaintiff fell short of the requirements of a pleading, largely because it failed to set out the facts which the plaintiff intended to prove at trial from which the court would be asked to find that there had been a foreseeable risk against which the defendant should have taken precautions, and that it failed to set out the precautions which the plaintiff says the defendant should have taken. There were other more minor shortcomings in the draft pleading which senior counsel for the plaintiff had acknowledged during the hearing of the application.
At the conclusion of my reasons I expressed the provisional view that the cost of the application should be costs in the cause. I noted that each party had had some success. The defendant had not satisfied me that the proposed pleading raised a new cause of action, or that if it did, the new cause of action did not arise out of the same or substantially the same facts. On the other hand, the plaintiff had not persuaded me that leave should be granted to file the draft in its then form. I also noted that the circumstances leading to the application to amend arose from no fault of the plaintiff or her lawyers, but rather from additional information which became available to the plaintiff and her advisers through the discovery process and which had been, at least notionally, within the knowledge of the defendant at an earlier time.
I have since heard submissions from senior counsel for both parties. Senior counsel for the defendant submits that the appropriate orders would be:
(a) that the costs of and incidental to the application in proceeding dated 16 March 2011 (including the costs of drafting the first proposed amended statement of claim attached thereto) be costs in the cause;
(b) that the plaintiff pay the defendant’s costs of its letter requesting further and better particulars dated 22 March 2011 and the response dated 11 April 2011; and
(c) that the plaintiff pay the defendant’s costs of and incidental to the amended application in proceeding on and from 11 April 2011.
Senior counsel for the plaintiff submits that I should confirm my provisional view and order that the costs of the application be costs in the cause.
The application was filed on 17 March 2011. Its return date was 28 March. On that date I made, by consent, some preliminary orders about the hearing of the application. On 12 April 2011 the solicitors for the plaintiff filed an amended application in proceedings annexing a proposed pleading in significantly different and much longer terms than the one referred to in the application filed on 17 March. I heard the application, which proceeded on the basis of the amended document, on 28 July 2011.
There had been considerable correspondence between the solicitors for the parties about the pleadings, including requests for further and better particulars. The solicitor for the defendant wrote a letter on 22 March 2011 seeking further and better particulars of the draft pleading which accompanied the application when originally filed. Although that letter ran to only a page and a half, the response furnishing the particulars dated 11 April 2001 was of 31 pages. Those are the letters in respect of which the defendant seeks costs.
The letter furnishing particulars, and the draft statement of claim which accompanied the amended application, were settled by senior counsel for the plaintiff, and it was in practical terms the amended application which was heard on 28 July 2011.
It seems to me on reflection that rather than the orders sought by senior counsel for the defendant, I should make orders as to costs which reflect the fact that the application in proceeding filed on 17 March 2011 proved to be unsatisfactory and required amendment by reason of its own defects rather than because of any fault of the defendant. In the circumstances the costs in relation to that original application should not form part of the plaintiff’s recoverable costs whatever the outcome of the action, and it is reasonable that the defendant should have its costs in that regard.
As to the balance of the costs of the application as amended, I take account of the fact that the plaintiff needed to amend her statement of claim to correct the factual error which came out during discovery. However, she also needed to amend to deal with a number of defects in the original pleading, and so far as that part of the application was concerned, she should be seen as coming to the court to seek an indulgence for which she should bear the costs regardless of the outcome. I also take account of the fact that the hearing of the application took half a day, and that a reasonable part of that hearing was taken up with the arguments about whether the proposed pleading raised a new cause of action, an issue in relation to which the defendant was unsuccessful.
I am also mindful of doing what I can in framing orders about costs to minimise the complexity of the tasks which will fall to those who may need to prepare itemised assessments of costs, and to the officers of the court who may need to conduct the assessment process.
In exercising my discretion as to costs so as to take account of all of those factors, I propose to order that the plaintiff pay half of the defendant’s costs of the application, and that the other half of the defendant’s costs, and half of the plaintiff’s costs of the application from 11 April 2011 be costs in the cause. Having regard to the plaintiff’s status as an individual member of the community, and the defendant’s as a Territory of the Commonwealth, I propose to order that the costs I have ordered in the defendant’s favour against the plaintiff not be recoverable until final orders are made in the action.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.
Associate:
Date: 23 March 2011
Counsel for the plaintiff: Ms HL Donohoe SC
Solicitor for the plaintiff: Blumers
Counsel for the defendant: Mr RL Crowe SC
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 16 March 2011
Date of judgment: 23 March 2011
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