Marzol v Killen

[2018] NSWSC 845

Supreme Court

New South Wales

Medium Neutral Citation:	Marzol v Killen [2018] NSWSC 845
Hearing dates:	25 May 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Order the plaintiff to pay the defendant’s costs of and incidental to her notice of motion filed 6 February 2017 on an indemnity basis. (2)    Grant leave to the plaintiff to rely upon the reports of Mark Ravagnani dated 29 August 2017, Dr Selwyn Smith dated 9 February 2018 and Dr Geoffrey Miller dated 15 April 2018. (3)    Direct that the plaintiff indemnify the defendant with respect to any travelling or accommodation costs incurred by the defendant for medical appointments reasonably arranged by the defendant in response to the reports referred to in order (2).
Catchwords:	COSTS – application by defendant to have four related matters heard together – whether plaintiff’s opposition to that course reasonable – whether plaintiff’s attitude caused unreasonable expense or delay – whether plaintiff should pay costs of the defendant’s notice of motion – whether costs should be paid on an indemnity basis   PRACTICE & PROCEDURE – where plaintiff sought leave to rely upon additional medical reports – whether leave to do so should be granted
Cases Cited:	Marzol v Joubert; Marzol v Killen [2018] NSWSC 586
Category:	Procedural and other rulings
Parties:	Frangipani Marie Marzol (Plaintiff) Dr Judith Killen (Defendant)
Representation:	Counsel: J Ronald (Plaintiff)   Solicitors: Commins Hendriks (Plaintiff) Meridian Lawyers (Defendant)
File Number(s):	2015/334990
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 4 May 2018, I ordered that four related proceedings be heard together with the evidence in one being treated as the evidence in the others: see Marzol v Joubert; Marzol v Killen [2018] NSWSC 586. I did not deal with the question of the costs of that application. Dr Killen now seeks an order for the payment of her costs of and incidental to the motion. She also asks that those costs be paid on an indemnity basis.

2. That application is based upon the fact that Dr Killen effectively proposed to Ms Marzol well before the application was heard that she should consent to the very orders that I ultimately made. This appears from the terms of HWL Ebsworth’s letter dated 8 February 2018 to Commins Hendriks Pty Ltd in the following relevant terms:

“We refer to the above matter and in particular the notice of motion which was filed 6 February 2017 in the Supreme Court.

Just so it is clear, we confirm that…we are seeking orders that the four matters brought by Mr and Mrs Marzol all be heard and determined together (Order 2 of our notice of motion)…

As we understand it, your clients do not consent to any of the orders in either the summons or the motion. We ask that your clients give further consideration to this. If there are grounds for opposition, would you please indicate them to us. As you know, the defendants in the other proceedings consent to these orders.

In the event that we are successful in obtaining the orders which have been sought in our notice of motion and summons, this letter will be used in support of any application for costs, including indemnity costs.”

3. No response to this letter was ever sent or received.

4. Ms Marzol’s opposition to Dr Killen’s application was never explained to Dr Killen or to me. Dr Killen’s proposal was a sensible and practical approach to the management of several different but related proceedings. The savings in terms of legal costs, reduction of inconvenience to expert and other witnesses and enhanced prospect of a speedy or more efficient resolution of the litigation made the application at least worthy of consideration by the plaintiff. Instead, Dr Killen’s overtures were not merely not accepted; they were completely ignored. All of the costs associated with the notice of motion could quite simply have been avoided by a different and more thoughtful approach.

5. Ms Marzol tacitly acknowledged that a costs order is difficult to resist in these circumstances. However, she opposes the making of such an order on an indemnity basis.

6. In my view, albeit in a discrete and confined setting, Ms Marzol’s conduct has caused unreasonable delay and expense. While I accept that a party is generally entitled as a matter of principle to choose between or among competing forensic positions, the corresponding truth is that it cannot be assumed that the luxury of doing so will necessarily be without consequences. Stubborn, especially unexplained, intransigence has no place in modern litigation. Opposition simply for the sake of it is no longer acceptable.

7. Dr Killen’s approach was reasonable and sensible. She should not be required to bear the burden of costs that could and should have been wholly avoided. Ms Marzol should pay the costs of and incidental to the notice of motion on an indemnity basis.

8. Ms Marzol also applies for leave to rely upon the expert medical reports of Mark Ravagnani, a psychologist, dated 29 August 2017, Dr Selwyn Smith dated 9 February 2018 and Dr Geoffrey Miller dated 15 April 2018. Dr Killen opposes this course.

9. I have been provided with details of the correspondence between the parties dealing with this issue. In short, Dr Killen maintains that I have previously made orders for the service of expert reports and refresher reports and that Ms Marzol should not now be entitled to rely on more reports that were neither contemplated by my earlier orders nor reasonably foreshadowed to Dr Killen as a possibility. Ms Marzol maintains that she does not require leave or, if she does, that it should be granted, having regard to the fact that the reports are unlikely to disrupt or delay the conduct of the proceedings but are otherwise considered to be an important part of her case.

10. Without wishing to derogate from the importance of obedience to orders and the role of case management, it seems to me that Dr Killen’s concerns are somewhat disproportionate to the matter at hand. Provided that she does not incur costs, such as travelling costs for visits to Dr Killen’s doctors in Sydney or beyond Wagga Wagga, there does not seem to me in this case to be an overriding objection to the course which Ms Marzol proposes. Accordingly, if Dr Killen wishes to arrange a medical in Sydney or elsewhere in response to any of these latest reports from Mr Ravagnani or Drs Miller or Smith, she should not be required to pay for any travelling or like costs incurred for that purpose. There can otherwise be no significant basis upon which to oppose Ms Marzol’s proposals.

11. Accordingly, I grant leave, if leave be required, for Ms Marzol to rely upon the reports of Mark Ravagnani dated 29 August 2017, Dr Selwyn Smith dated 9 February 2018 and Dr Geoffrey Miller dated 15 April 2018. In the event that Dr Killen incurs disbursements, such as travelling or overnight accommodation expenses, associated with having Ms Marzol medically examined for the purpose of responding to these reports, Ms Marzol will be required to indemnify Dr Killen for any such disbursements.

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Decision last updated: 08 June 2018