Martin v Amaca Pty Limited (No. 2)

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Martin v Amaca Pty Limited (No. 2) [2017] NSWDDT 11

Hearing dates:

3 November 2017

Date of orders:

10 November 2017

Decision date:

10 November 2017

Before:

Judge D. Russell

Decision:

1. Dismiss the defendant’s application to vary the costs order made on 15 September 2017.

 2. Order the defendant to pay the plaintiff’s costs of and incidental to the defendant’s application for a variation of the costs order made on 15 September 2017.

Catchwords:

COSTS – application for variation of primary costs order – whether defendant should pay plaintiff’s costs of evidence by a forensic accountant – some assumptions made by the accountant not established by evidence – some conclusions of accountant not accepted

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Martin v Amaca Pty Limited [2017] NSWDDT 8

Category:

Costs

Parties:

Karen Martin (plaintiff)
Amaca Pty Limited (defendant)

Representation:

Counsel:
Mr S. Tzouganatos (plaintiff)
Mr J. Sheller (defendant)

   

Solicitors:

  Turner Freeman (plaintiff)
Mills Oakley (defendant)

File Number(s):

28/2017

Judgment

1. Judgment for the plaintiff against the defendant for $472,586 was delivered on 15 September 2017 – Martin v Amaca Pty Limited [2017] NSWDDT 8. The defendant was ordered to pay the plaintiff’s costs. Liberty was granted to apply if any different costs order was sought by either party.

2. The matter was listed again on 3 November 2017 at which time the defendant sought a different costs order. No explanation was provided as to why it took the defendant seven weeks to bring the matter back before the court to seek a different costs order. It is unsatisfactory that the costs issue remained in abeyance for so long. In future, my judgments will grant seven days only for a party to apply for a different costs order.

SUBMISSIONS FOR THE DEFENDANT

3. The defendant seeks to vary the original costs order so that the costs of the reports and oral evidence of Mr Thompson are excised from the costs which the defendant has to pay to the plaintiff, so that each party pays its own costs associated with and incidental to the reports and evidence of Mr Thompson. The defendant relies upon the court’s general discretion contained in s 98 of the Civil Procedure Act 2005.

4. Mr Thompson was a forensic accountant engaged by the solicitors for the plaintiff. He provided two reports, gave oral evidence and was cross-examined.

5. The defendant submitted that the costs order should be varied because Mr Thompson’s evidence was predicated upon assumptions he was asked to make, which were baseless or which the plaintiff never sought to prove. In brief it was said that the evidence did not marry up with the case which was pleaded and particularised.

6. The assumptions made by Mr Thompson, which were said to be baseless or unproven, were:

1. Mr Martin’s pre-injury weekly earning capacity was approximately $855;

2. Mr Martin had suffered a loss of capacity since at least 1 January 2016;

3. Mr Martin’s personal maintenance was $100 per week;