McLaughlin v State of New South Wales (No. 2)

The plaintiff, McLaughlin, brought an action against the State of New South Wales for damages relating to an incident that occurred in 2014. The case was heard by the Supreme Court of New South Wales. McLaughlin sought indemnity costs, arguing that the defendant had acted unreasonably and without merit in filing a Notice of Motion on 18 August 2022. The defendant, State of New South Wales, opposed the application on the basis that the plaintiff's claim for indemnity costs was excessive and not warranted by the circumstances.

The court had to decide whether the plaintiff's application for indemnity costs was justified. Specifically, the court needed to determine whether the defendant's actions in filing the Notice of Motion were unreasonable and without merit, and whether the plaintiff's costs should be assessed on the indemnity basis. The court also needed to consider the appropriate assessment of costs for the proceedings as a whole.

In determining the matter, the court found that the defendant's filing of the Notice of Motion was indeed unreasonable and without merit. The court accepted that the plaintiff had acted diligently and with reasonable care in bringing the proceedings and that the defendant had acted unreasonably in opposing the application. As a result, the court ordered that the defendant pay the plaintiff's costs in relation to the Notice of Motion on the indemnity basis. The court also ordered that the defendant pay the plaintiff's costs of the proceedings assessed on the ordinary basis up to 20 July 2022 and assessed on the indemnity basis from 21 July 2022 onwards. Finally, the court ordered that the costs of the costs determination be paid by the defendant to the plaintiff on the indemnity basis.

The court confirmed the costs orders made on 10 November 2021 by Judge Smith SC and ordered the defendant to pay the plaintiff's costs in relation to the defendant's Notice of Motion filed on 18 August 2022. The court also ordered the defendant to pay the plaintiff's costs of the proceedings assessed on the ordinary basis up to 20 July 2022 and assessed on the indemnity basis from 21 July 2022 onwards. Finally, the court ordered that the costs of this costs determination be paid by the defendant to the plaintiff, and that such costs are to also be assessed on the indemnity basis.