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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 845
Decision Date: 08 June 2018

CaseChat Overview and Summary

In Marzol v Killen, the defendant applied to consolidate four related matters for the purposes of hearing. The plaintiff opposed the application, arguing that consolidation was not appropriate. The dispute centred around whether the plaintiff's opposition was reasonable and whether the plaintiff's attitude resulted in unreasonable expense or delay, thus warranting a costs order against the plaintiff. Additionally, the court had to determine whether the plaintiff should pay the defendant's costs associated with the notice of motion, and if the costs should be on an indemnity basis. The plaintiff also sought leave to rely upon additional medical reports, and the court had to decide whether this leave should be granted.

The court examined whether the plaintiff's opposition to consolidation was reasonable, considering factors such as the overlap between the matters and the potential for efficiency. The court considered whether the plaintiff's conduct led to unreasonable expense or delay, which could justify an order for the plaintiff to pay the defendant's costs. The court also evaluated the plaintiff's request for leave to rely on additional medical reports and whether granting such leave would be appropriate.

The court ruled that the plaintiff's opposition to consolidation was not reasonable given the overlap between the matters, and that the plaintiff's conduct did cause unreasonable expense and delay. Consequently, the plaintiff was ordered to pay the defendant's costs of the notice of motion, and the court determined that these costs should be paid on an indemnity basis. Additionally, the court granted the plaintiff leave to rely upon the additional medical reports as it found that such evidence was pertinent to the resolution of the case.

The court ordered the plaintiff to pay the defendant's costs of the notice of motion on an indemnity basis and granted the plaintiff leave to rely upon additional medical reports.

Orders