Romeo v Pennell - [2021] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ROMEO -v- PENNELL [2021] WADC 50
CORAM:   RUSSELL DCJ
HEARD:   24 FEBRUARY 2021
DELIVERED          :   26 MAY 2021
FILE NO/S:   CIVO 42 of 2020
BETWEEN:   GIULIANA CARMELA ROMEO
Applicant
AND
CRAIG PENNELL
First Respondent

Catchwords:

Appeal from registrar - Costs - Costs of application for leave to issue proceedings under s 39(3) Limitation Act 2005 (WA) - Whether application for leave to issue proceeding out of time under s 39(3) Limitation Act 2005 an indulgence

Legislation:

District Court Rules 2005 (WA), r 15(5), r 64
Limitation Act 2005 (WA), s 39(3)
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)

Result:

Appeal allowed

Respondent to pay appellant's costs of costs application and of appeal

Order in respect of costs of application under s 39(3) Limitation Act 2005 not disturbed

Representation:

Counsel:

Applicant	:	Ms F A Stanton
First Respondent	:	Ms P Campbell

Solicitors:

Applicant	:	John Hanly Legal
First Respondent	:	Panetta McGrath Lawyers

Case(s) referred to in decision(s):

Barr v Farrell [2013] WASCA 211 (S)
Briggs v Curtis Quick & Associates (Unreported, WASC, Library No 980141, 30 March 1998)
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Commonwealth of Australia v Smith [2005] NSWCA 478
Dibley v Sydney West Area Health Service [2009] NSWSC 856
Galea v Commonwealth of Australia (No 2) [2008] NSWSC 260
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Hughes v St Barbara Ltd [2011] WASCA 234 (S)
Hunt v Knabe (No 2) (1992) 8 WAR 96
Kamath v Allight Sykes, Landsdale [2019] WADC 98
Kezic v St John of God Health Care Inc [2015] WASCA 220
Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128
Lymbery v The Commonwealth of Australia [2005] NSWSC 523
Myra Pty Ltd v Thompson [2011] WASC 230 (S)
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Oshlack v Richmond River Council (1998) 193 CLR 72
Romeo v Pennell [2020] WADC 57
Romeo v Pennell [2020] WADC 57 (S)
Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 4) [2018] FCA 74
Spark v Rogers [No 3] [2017] WADC 4
Stanley v Layne Christensen Co [2006] WASCA 56
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

RUSSELL DCJ:

Introduction

This is an appeal from a costs decision of Deputy Registrar Hewitt made on 10 September 2020. The relevant background is as follows.
By originating summons filed on 19 March 2020, the applicant, Guiliana Carmela Romeo, sought leave pursuant to s 39(3) of the Limitation Act 2005 (WA) to commence proceedings after expiry of the limitation period against the respondents, Dr Craig Pennell, Dr Scott White and the North Metropolitan Health Service (Application).
On 6 May 2020, Deputy Registrar Hewitt made orders granting Mrs Romeo leave to commence proceedings against the respondents.[1]
[1] Romeo v Pennell [2020] WADC 57.
Mrs Romeo has subsequently issued proceedings against the respondents claiming damages for negligence alleged to have arisen from medical treatment and medical and nursing care provided to her in relation to a surgical procedure performed on her by the first respondent, Dr Pennell, at the King Edward Memorial Hospital on 24 June 2014.
In making his decision to grant the leave sought in the Application, the deputy registrar summarised the bases upon which Mrs Romeo's case was advanced, as follows:
1.first, negligence in conducting the procedure;
2.second, negligence in failing to properly heed and investigate her complaints of symptoms; and
3.third, negligently failing to identify the procedure itself as a known cause of symptoms of the kind she was experiencing.[2]
[2] Romeo v Pennell [7].
The deputy registrar found that none of those matters were or could have been known by Mrs Romeo until after the limitation period for commencing proceedings against those responsible had expired.[3] He was satisfied that Mrs Romeo had made out a proper case for the court to extend the time in which the action could be commenced and that the orders sought in the Application should be made.[4]
[3] Romeo [8].
[4] Romeo [9].
On 28 August 2020, the deputy registrar heard the parties in relation to the costs of the Application. Mrs Romeo sought an order that the costs of the Application be in the cause of the proceedings ultimately issued by her against the respondents. The first respondent, Dr Pennell, sought an order that Mrs Romeo pay his costs of the Application. The second and third respondents sought no order as to costs.
On 10 September 2020, the deputy registrar delivered his decision in relation to costs. He made the following order:
The costs of the application to and including the decision on 6 May 2020 be in the cause between the applicant and the first respondent and there be no order as to those costs between the applicant and the second and third respondents. The costs of the application from 6 May 2020 be the first, second and third respondents' to be taxed.
Counsel for both Mrs Romeo and Dr Pennell agree that the effect of the order is that, as between those parties, the costs of the Application are costs in the cause of the ultimate proceedings issued by Mrs Romeo (being action CIV 3065 of 2020) and that Mrs Romeo pay Dr Pennell's costs of the costs application.
Mrs Romeo appeals the decision of the deputy registrar ordering her to pay Dr Pennell's costs of the costs application. That is, the costs of the Application from 6 May 2020. Mrs Romeo takes no issue with the order that the costs of the Application itself be in the cause of CIV 3065 of 2020. She says that was the order she sought and the appropriate order as to the costs of the Application.
Dr Pennell has not brought any appeal against the costs orders made, but submitted that his costs of the Application and of the costs application should be paid by Mrs Romeo.
There is no challenge to the deputy registrar's substantive decision to grant leave to issue proceedings pursuant to s 39(3) of the Limitation Act, or his reasons for that decision.
For the reasons that follow, Mrs Romeo's appeal is allowed. The appropriate order as to costs as between Mrs Romeo and Dr Pennell in relation to the costs application is:
The first respondent pay the applicant's costs of the costs application heard on 27 August 2020.
The order as to the costs of the Application as between Mrs Romeo and Dr Pennell does not, in my view, form part of the appeal. If I am wrong, for the reasons that follow, there is no reason to disturb the deputy registrar's order, which the parties accept is to the following effect:
The costs of the applicant's application for leave to commence proceedings as between the applicant and the first respondent be in the cause in action CIV 3065 of 2020.

The appeal and the issues to be determined

The appeal

Mrs Romeo's lawyers filed the appeal notice on 19 September 2020, within the time required for commencing an appeal under the District Court Rules 2005 (WA) (DCR), r 15(2).
The appeal notice was subsequently amended by consent, most recently in the form of the further amended notice of appeal filed on 23 February 2021. I ordered that the notice of appeal be amended in those terms by consent at the hearing of the appeal on 24 February 2021. The parties to the appeal agree that references to the 'respondent' in the amended appeal notice are to the first respondent, Dr Pennell.
The appeal is by way of a new hearing of the matter that was before the deputy registrar.[5] It involves a complete de novo review, a rehearing of the application or matter which led to the order under appeal as if that application or matter came before me for the first time.[6] That is, I am to hear and determine for the first time the matter of costs in relation to the costs application, being the matter which led to the order the subject of the appeal.
[5] DCR r 15(6).
[6] Briggs v Glentham Pty Ltd (1992) 8 WAR 339, 349 - 350; Hunt v Knabe (No 2) (1992) 8 WAR 96, 109 ‑ 110; Hazart Pty Ltd v Rademaker(1993) 11 WAR 26, 28; Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128 [8]; Kezic v St John of God Health Care Inc[2015] WASCA 220 [42].
There is no requirement on the appellant to show that the deputy registrar made an error in the decision under appeal.[7]
[7] Hazart Pty Ltd v Rademaker (28); Spark v Rogers [No 3] [2017] WADC 4 [10]; Kamath v Allight Sykes, Landsdale[2019] WADC 98 [25].
As such, though the grounds of appeal refer to errors Mrs Romeo's lawyers submit were made by the deputy registrar, it is not necessary for me to determine whether there was any error of fact or law made by the deputy registrar, including any error in the exercise of his discretion.

The issues to be determined

The central issue for me to determine in this appeal is the appropriate order to be made in relation to the costs of the costs application.
It is submitted on behalf of Dr Pennell, in essence, that it is also open for me to review and redetermine the deputy registrar's order as to costs of the Application itself. However, Dr Pennell has not filed any appeal or cross-appeal in respect of that decision and Mrs Romeo's appeal is confined to the decision and order made in relation to the costs of the costs application.
This raises a further issue as to whether, in those circumstances, I am required to review the order made in relation to the costs of the Application itself.

Grounds of appeal

Though I do not need to determine whether there was any error on the part of the deputy registrar, I set out for completeness the grounds of appeal. They are expressed as follows in the amended notice of appeal:
1.The deputy registrar erroneously decided that the granting of leave for Mrs Romeo to commence proceedings was an indulgence which gave rise to the operation of the general rule that costs be awarded to the respondents (Ground 1).
2.The deputy registrar erroneously decided that the Application was not a necessary part of Mrs Romeo's proposed action for damages, and did not appreciate that it was contended on her behalf that much of the work involved in making the Application was work of the kind that was required in order to bring the substantive proceedings, such as the gathering of evidence (Ground 2).
3.The deputy registrar failed to afford Mrs Romeo procedural fairness by failing to hear her on the issue of the costs of the costs application rather than determining it at the same time as determining the substantive question of the costs of the Application (Ground 3).
4.The costs of the costs application ought to have followed the event. Mrs Romeo contended at the hearing of the costs application that the appropriate order for costs as between her and Dr Pennell was that the costs of the Application be in the cause in the ultimate proceedings. As between Mrs Romeo and Dr Pennell, that is the order that was made on 10 September 2020. Accordingly, Mrs Romeo should have been awarded the costs of her Application for that order (Ground 4).

The appellant's submissions

At the costs hearing before the deputy registrar and in this appeal, it was submitted on behalf of Mrs Romeo, in effect, that, in relation to the costs of the Application:
1.In an application for leave under s 39(3) of the Limitation Act, a successful applicant could not be said to be at fault in causing a delay in the commencement of proceedings. This is because, by reason of each of the circumstances in which leave could be granted, an applicant's failure to commence proceedings within time is a matter beyond the applicant's control.
2.It is appropriate for a plaintiff who is ultimately successful to have costs that were necessarily incurred in order to put them in a position to commence the substantive proceedings.
3.Conversely to 2 above, if a plaintiff is ultimately unsuccessful in that litigation, the defendant should ordinarily have the costs of the application as well as the costs of the ultimate action.
4.The work involved in bringing the Application, including gathering and considering evidence and expert evidence, is work which would have been necessary in bringing the action, in any event. As such, it would be unjust having granted leave to deprive a plaintiff of their costs in relation to that work simply because it had been necessary to incur those costs at the stage of seeking leave to commence the proceedings.
5.In arriving at his decision to grant leave, the deputy registrar found that Dr Pennell had given advice that the procedure he carried out was not the cause of Mrs Romeo's 'subsequent problems' and that Dr Pennell's expression of opinion in that regard 'was a material fact in the failure of Mrs Romeo commencing proceedings within the time permitted'.
In the appeal, it was submitted on behalf of Mrs Romeo that:
1.In relation to the costs of the costs application:
(a)she was denied procedural fairness because she was denied any hearing in relation to the deputy registrar's decision as to the costs of the costs application; and
(b)if she had been heard, Mrs Romeo would have made a submission that the costs of the application in respect of costs should follow the event and, as the costs order made in respect of the Application was the order she had sought, the appropriate order was that Dr Pennell pay Mrs Romeo's costs.
2.In relation to the costs of the Application:
(a)any controversy about Dr Pennell's contributory conduct would be resolved at the trial of the ultimate proceedings, such that an order for costs in the cause of those proceedings would compensate the successful party in that dispute;
(b)even if Dr Pennell had not caused or contributed to Mrs Romeo's failure to commence proceedings within the limitation period, it would have been appropriate in any event for the costs of the Application to be in the cause in the ultimate proceedings, for the reasons set out in Mrs Romeo's written submissions. That is, in summary, there is no general rule or settled practice that a party seeking an extension of time to commence proceedings is seeking an indulgence of a kind that attracts an adverse order for costs; and
(c)an order that the costs of the Application be costs in the ultimate proceedings preserves the opportunity for the party who is ultimately successful in those proceedings to recover their costs associated with work necessarily undertaken in order to bring the ultimate proceedings.

The first respondent's submissions

At the costs hearing before the deputy registrar it was submitted on behalf of Dr Pennell, in effect, that Mrs Romeo should pay his costs of the Application because:
1.The general rule is that where a party is seeking an indulgence of the court, that party will be required to pay the costs of the application.[8]
2.An applicant who is out of time is deemed to be seeking an indulgence.[9]
3.Applications for an extension of a limitation period have generally been viewed as cases in which, in the ordinary course, the successful applicant should pay the costs of the application save where the opposition is wholly unreasonable.[10]
4.Dr Pennell neither objected to nor consented to the Application and it is not unreasonable for a party to require an applicant to persuade the court that an extension of time should be granted.[11]
5.In response to a submission by Mrs Romeo that she cannot be 'blamed' for the delay in commencing an action:
(a)an inquiry into fault on the applicant's part does not assist the question of costs, though continued by stating that in making an extension of time application, an applicant has necessarily allowed themselves to be out of time;[12] and
(b)some four years elapsed between Mrs Romeo discussing her case with solicitors in August 2015 and reviewing the report of her treating urologist in March 2019 without any particular urgency on her part in determining whether she may have a cause of action against one or more of the respondents.
[8] Referring to Stanley v Layne Christensen Co [2006] WASCA 56 [52].
[9] Referring to Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 4) [2018] FCA 74 [6] (Sanda)
[10] Referring to Sanda; Holt v Wynter[2000] NSWCA 143; (2000) 49 NSWLR 128 [121]; Lymbery v The Commonwealth of Australia [2005] NSWSC 523 [49]; Dibley v Sydney West Area Health Service [2009] NSWSC 856 [76].
[11] Referring to Barr v Farrell [2013] WASCA 211 (S) [8].
[12] Referring to Galea v Commonwealth of Australia (No 2) [2008] NSWSC 260 [11].
In the appeal, it was submitted on behalf of Dr Pennell, in relation to the costs of the costs application, in effect, that Mrs Romeo should pay Dr Pennell's costs of the costs application, notwithstanding Mrs Romeo's ultimate success in her application for the costs of the Application, in circumstances where the deputy registrar:
1.Found that there can be no suggestion that the respondents had acted unreasonably in relation to the Application.
2.Agreed with the respondents that his 'unhesitating view' was that an application for an extension of time should be regarded as an indulgence.
3.Found that the authorities cited by the respondents supported the position advanced by them that if the granting of leave constituted an indulgence, then ordinarily the respondent to such an application would be entitled to costs.
4.Only departed in his reasoning from the position advanced by Dr Pennell in respect of his finding that Dr Pennell's conduct was a material fact in Mrs Romeo's failure to commence proceedings within the time permitted, but that the costs of the subsequent argument in relation to costs should be Dr Pennell's in any event.
Dr Pennell has not filed an appeal or cross-appeal in relation to the order made by the deputy registrar on 10 September 2020 in respect of the costs of the Application. However, it was submitted on behalf of Dr Pennell, in effect, that as Mrs Romeo's appeal is a de novo review of the matter that was before the deputy registrar, r 15(6) DCR provides that the court is empowered to make a decision in respect of both the costs of the Application and the costs of the costs application.
On that basis, it was submitted on behalf of Dr Pennell that, to the extent the appeal invites reconsideration of the costs of the Application:
1.He referred to and relied upon the written submissions made in relation to the costs of the Application, the effect of which is set out in [26] of these reasons, above.
2.The deputy registrar erred in finding that comments made by Dr Pennell to Mrs Romeo were a material fact in her failure to commence proceedings within the time permitted.
3.The bulk of the delay in Mrs Romeo commencing proceedings which took her out of time occurred between 15 September 2015 and January 2019 when Mrs Romeo was instructing solicitors to consider whether she had any possible cause of action against any treating practitioners in relation to her injuries.
4.Dr Pennell's comments to Mrs Romeo to the effect that her ureteric injury was not caused by the cervical cerclage procedure he performed should not be characterised as contributory conduct in the sense they contributed to the lapse of time within which Mrs Romeo could bring proceedings without leave.
5.To the extent that Dr Pennell offered any explanation to Mrs Romeo as to the aetiology of her obstruction which may have influenced her decision to investigate whether she had a cause of action in relation to her injuries, this could only be considered to have been a factor between the last time Dr Pennell spoke to her (6 March 2015) and when she discussed the matter with solicitors (27 August 2015).
6.It is not apparent why it took nearly three years from initial instructions to Mrs Romeo's solicitors to commissioning expert evidence necessary to advise Mrs Romeo about any potential cause of action and her prospects of success, but it cannot be said to have been caused or contributed to by Dr Pennell.
7.The deputy registrar's order that the costs of the Application be in the cause should be set aside in favour of an order that Mrs Romeo pay Dr Pennell's costs of the Application.

Further submissions filed by both parties

Following the hearing of the appeal, I invited the parties to make further submissions in relation to the reasons for decision relating to costs in Commonwealth of Australia v Smith,[13] in which the New South Wales Court of Appeal considered the question of costs in an application for an extension of a limitation period. Neither party had referred to Smith in their previous written submissions or during the hearing of the appeal.
[13] Commonwealth of Australia v Smith [2005] NSWCA 478 (Smith).
Both parties filed further submissions, which I have considered. I do not set out those further submissions in detail.
The further submissions made on behalf of Mrs Romeo concluded that the decision in Smith:
1.Supports the order made by the deputy registrar that costs of the Application be in the cause in the ultimate proceedings as between Mrs Romeo and Dr Pennell.
2.Provides no basis for an argument that costs incurred in respect of Mrs Romeo's application for that order should not follow the event.
The further submissions made on behalf of Dr Pennell concluded that:
1.To the extent Smith is relevant, it is because it stands for the general proposition that the discretion of the court in determining costs requires consideration of the reasonableness of Dr Pennell's conduct in relation to the Application for an extension of time.
2.As such, in circumstances where Dr Pennell did not oppose the Application (though did not consent to it) and has not otherwise acted unreasonably in relation to it, he should receive his costs of the Application.
3.Accordingly, it is also appropriate that the deputy registrar's decision to award Dr Pennell his costs of the costs application be upheld.

The statutory framework - s 39(3) of the Limitation Act

Section 39(3) of the Limitation Act permits the court to extend the time within which an action can be commenced if it is satisfied that, when the limitation period expired, the person to whom a cause of action accrues was:
(a)not aware of the physical cause of the injury;
(b)was aware of the cause of the injury but was not aware that the injury was attributable to the conduct of a person; or
(c)was aware of those things, but after reasonable enquiry, had been unable to establish the person's identity.

Relevant principles relating to costs

The following general principles relating to costs are well established.
Costs are in the discretion of the court. The court's discretion to award costs must be exercised judicially but is otherwise not confined.[14]
[14] Oshlack v Richmond River Council (1998) 193 CLR 72 [21] - [22]; Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 [24] - [25]; Hughes v St Barbara Ltd [2011] WASCA 234 (S) [5]; Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48] ‑ [50].
Costs will usually follow the event so that generally the court will order that the successful party to any action or matter recover their costs.[15]
[15] RSC O 66 r 1(1); DCR r 64.
That will not, generally, be the case where a party seeks an indulgence of the court. As a general rule, where a party seeks an indulgence, that party should pay the costs of the application, as explained by Wheeler JA in Stanley v Layne Christensen Company:[16]
The general rule is, and should remain, that where a party is seeking the indulgence of the Court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence. That is implicitly recognised in Briggs at 14, where Owen and Parker JJ appear to accept that an unreasonable withholding of consent might form an appropriate basis for a ruling on costs which departed from the 'normal rule' relating to indulgences. However, in that case their Honours considered that it could not be said that the other party was unreasonable to require that the proposed amendment be justified to the satisfaction of a judicial officer.
[16] Stanley [52].
The 'normal rule' relating to indulgences referred to in Stanley,[17] was the rule articulated in Briggs v Curtis Quick & Associates[18] that where a party is seeking the indulgence of the court to amend its pleading, that party will be required to pay the costs of the application, including costs thrown away.
[17] Stanley [51] - [52].
[18] Briggs v Curtis Quick & Associates (Unreported, WASC, Library No 980141, 30 March 1998) 14 (Owen & Parker JJ).
Whilst the rule may be a general rule, it is not an inflexible one, as stated by Le Miere J in Myra Pty Ltd v Thompson:[19]
As a general but not inflexible rule, a party who seeks a dispensation, indulgence or favour of the court is ordered to pay the other party's costs of the application, whether or not it succeeds.
[19] Myra Pty Ltd v Thompson [2011] WASC 230 (S) [7].

Disposition

I will deal firstly with the issue as to whether I am required to review the order made in relation to the costs of the Application itself and then the appropriate orders in relation to the costs of the Application and of the costs application.

The costs of the Application

As I have stated, the appeal is by way of a new hearing of the matter which led to the order under appeal.[20] The matter which led to the appeal is the order made that Mrs Romeo pay Dr Pennell's costs of the costs application. That is the subject of the appeal. There is no appeal by either party in respect of the order made in relation to the costs of the Application itself.
[20] Hazart Pty Ltd v Rademaker (28).
As such, it is not necessary for me to determine the appropriate order as to the costs of the Application.
If I am wrong about that, for the reasons I outline below, I find that the order made by the deputy registrar that the costs of the Application be costs in the cause of the proceeding now issued is the appropriate order and should stand.
As I have set out above, it was submitted on behalf of Dr Pennell in relation to the costs of the Application that, in essence, an applicant who is out of time is deemed to be seeking an indulgence; and applications for an extension of a limitation period have generally been viewed as cases in which, in the ordinary course, the successful applicant should pay the costs of the application unless the opposition is wholly unreasonable.[21]
[21] See [26] of these reasons and the authorities referred to.
For the reasons that follow, this is not a case in which, in my view, an indulgence has been sought and granted or one in which Mrs Romeo has allowed herself to get out of time. Nor will it automatically be the case that a party seeking leave to commence proceedings after expiry of the limitation period should be held to be seeking an indulgence. Each case must be considered on its own facts and in the context in which the application is made.
In granting leave to commence proceedings after expiry of the limitation period, the deputy registrar expressly found that the matters necessary for Mrs Romeo to be aware of to bring a claim were not or could not have been known by her until after the limitation period for commencing proceedings against those responsible had expired.
The deputy registrar also found that, on consultation with Dr Pennell, Mrs Romeo was advised by him that the symptoms and complications she had suffered were unlikely to have anything to do with the procedure he had undertaken and were likely due to other causes.[22]
[22] See Romeo v Pennell [3], [6] - [8].
Whilst reference was made by Dr Pennell to the lapse in time between Mrs Romeo first consulting solicitors and receiving the medical report that she relied on to ground her cause of action, no findings were made to the effect Mrs Romeo had allowed herself to get out of time.
There is no challenge to the deputy registrar's findings or to his decision to grant leave to commence the proceedings under s 39(3) of the Limitation Act.
In his decision on costs, the deputy registrar stated, in effect, that the advice given by Dr Pennell that the procedure he carried out was not the cause of Mrs Romeo's 'subsequent problems' and that Dr Pennell's expression of that view 'was a material fact in the failure of the applicant commencing proceedings within the time permitted'.[23]
[23] Romeo v Pennell [2020] WADC 57 (S) [7].
The deputy registrar posed a question as to whether a respondent in those circumstances should be entitled to costs for undoing a mischief for which he is partly responsible. He held that Dr Pennell should not be automatically entitled to the costs of the Application in those circumstances and that the costs of the Application as between him and Mrs Romeo should be in the cause.
This was expressed by the deputy registrar as a departure from the ordinary course, where, having found that the grant of leave was an indulgence, the respondent to such an application would be entitled to costs.[24]
[24] Romeo v Pennell [5] - [6].
I disagree with the view expressed by the deputy registrar that the grant of leave should be regarded as an indulgence.[25] This is inconsistent, in my view, with his findings in relation to the Application that I have referred to above. Having regard to those findings, this is not a case in which it can be said that an indulgence has been sought and granted.
[25] Romeo v Pennell [2020] WADC 57 (S) [5].
It is not comparable to, for example, seeking leave to amend a pleading, where costs of the application to amend and thrown away by the amendment will ordinarily be paid by the party seeking the leave to amend. Rather, Mrs Romeo was availing herself of the legislative machinery in place to allow someone in her circumstances to bring a claim after expiry of the limitation period.
The grant of leave to commence proceedings after expiry of the limitation period under s 39(3) of the Limitation Act required the court to be satisfied (as it was) that, when the limitation period expired, Mrs Romeo was (relevantly):
(a)not aware of the physical cause of the injury; or
(b)was aware of the cause of the injury but was not aware that the injury was attributable to the conduct of a person.
The deputy registrar also referred to the reasons of Sheller JA in Holt v Wynter,[26] a decision of the New South Wales Court of Appeal granting leave to commence proceedings after expiration of the limitation period, as follows:
… In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. Although Judge Cantrill was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent's decision to resist the application as unreasonable.
[26]Holt v Wynter [121]. A decision relating to the grant of leave.
I have considered Holt and the other authorities relied on by Dr Pennell. Whilst reference is made in some of those authorities to a successful applicant 'ordinarily' paying the costs, I do not accept that there is a general rule that requires a party seeking an extension of time under the Limitation Act to pay the costs of the application unless the respondent has acted unreasonably in opposing the application.
In Holt, in contrast to Sheller JA's statement that 'ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable,' Priestley JA stated that: [27]
I am not aware of any settled practice concerning the costs of a successful applicant. It seems to me that the appropriate order in such cases must depend very much on the circumstances of the case.
He referred to two instances of which he had actual knowledge. He said that in those cases the costs of the successful applications were in the cause and that the same order seemed to him appropriate in the present case.
[27] Holt [104] - [108].
In Smith, Santow JA referred to Sheller JA's statement at [121] of Holt and stated:[28]
However, there is no rule that binds the judge to deny costs to an applicant for extension of the limitation period. A costs order for such an application is a matter of practice and procedure within the discretion of the primary judge …
[28] Smith 478 [159] - [160].
Also in Smith, Basten JA stated that, on one view, the principle stated by Sheller JA in Holt may be limited to the circumstances of that case, in which an intention to make a claim arose within time, but was not effected before the expiration of the period.[29] He considered orders made in other cases and concluded by saying:[30]
… it would seem that the Applicant should not get his costs unless the Respondent has acted in a manifestly unreasonable fashion. Even then, it may be that an appropriate order would grant the Applicant his costs if ultimately successful in the substantive proceedings. Absent unreasonable conduct on the part of the Respondent, it may nevertheless seem inappropriate, generally speaking, that the Respondent should obtain its costs of its unsuccessful opposition to the application, unless the applicant has acted unreasonably. In such circumstances, the costs of the application might be allowed to lie where they fall, or the costs could be the Respondent's costs of the action.
[29] Smith [217]
[30] Smith [221].
In Sanda,[31] Yates J stated that the approach of the successful applicant paying the costs of the application save where the opposition to it is wholly unreasonable, is an expression of the more general principle that a party seeking an indulgence, whether as to time or otherwise, should pay the costs of the indulgence being granted.
[31] Sanda [5].
Yates J cited examples of authorities in which an indulgence had been granted. He also referred to other decisions which doubted whether a successful applicant for the extension of a limitation period should be ordered, routinely, to pay the respondent's costs of the application.[32] He stated that he thought it would be an error to proceed as if a particular category of application before the court necessarily entails a particular outcome on costs.[33]
[32] Sanda [5] and the authorities referred to.
[33] Sanda [6].
This is consistent with the Court of Appeal's approach in this State in Barr v Farrell.[34] In that case, the court observed that the assistance that can be gained from other cases is generally very limited because the way in which the discretion is exercised very much depends upon the particular facts and circumstances of the case.
[34] Barr v Farrell [7] (judgment of the court, Pullin, Newnes & Murphy JJA).
Further, whilst the Court of Appeal accepted, as a general proposition, that where a party who is out of time successfully seeks an extension of time, ordinarily that party will not be entitled to an order for the costs of the application unless the conduct of the other party in opposing it was unreasonable, the court expressly stated that they would not venture beyond that. They continued:[35]
Whether, for instance, the applicant should pay the costs, or whether the costs should be in the cause of the action, are matters which are so dependent upon the particular facts of the case that the expression of any general principle would have to be so qualified as to be of no practical utility. The guiding principle must always be what is appropriate to do justice in the particular circumstances of the case.
[35] Barr [7].
In Barr, it was accepted by the parties that no fault could be attributed to the appellant or her former guardian for the failure to commence proceedings within time. The court held that responsibility seemed to lay with their former solicitors who had wrongly advised them as to the limitation period and the difficulty the appellant found herself in had nothing to do with the respondents.[36]
[36] Barr [8].
Though Dr Pennell levels some criticism at the lapse of time between Mrs Romeo consulting solicitors and obtaining and reviewing Dr Yin's report, there is no allegation in this case of any negligence on the part of Mrs Romeo's solicitors or any evidence to ground fault on Mrs Romeo's part.
I accept that Dr Pennell's opposition to the Application was not unreasonable and that it is not unreasonable for a party to require an applicant to persuade the court that an extension of time should be granted. However, I am not satisfied that there is any basis for ordering Mrs Romeo to pay Dr Pennell's costs of the Application, particularly where, in my view she was not seeking an indulgence.
Having regard to the authorities I have referred to, the circumstances of this case, the context in which the Application was made and neither party having acted unreasonably, in my view, the appropriate order as to the costs of the Application to do justice to the parties is for those costs to be in the cause of the ultimate proceedings, as ordered by Deputy Registrar Hewitt. In practical terms, proceedings having since been issued, the effect of that order is that the costs of the Application as between Mrs Romeo and Dr Pennell be in the cause in action CIV 3065 of 2020.
An order that the costs of the Application be in the cause of those proceedings allows the party who is ultimately successful in those proceedings to recover the costs reasonably and necessarily incurred by them in relation to the Application.
I accept the submission made on behalf of Mrs Romeo that it is appropriate for a plaintiff who is ultimately successful to have costs that were necessarily incurred in order to put them in a position to commence the substantive proceedings. It follows that if that plaintiff is ultimately unsuccessful, the defendant would ordinarily be awarded costs and the plaintiff would not then recover those costs.
I also accept, in general terms, the submission made on behalf of Mrs Romeo that the work involved in bringing the Application, including gathering and considering evidence and expert evidence, is work which would have been necessary to bring the action, in any event. As such, it would be unjust having granted leave to commence the proceedings to deprive a plaintiff of their costs in relation to that work because it had been necessary to incur those costs at the stage of seeking leave to commence the proceedings.
Of course, the question of whether those costs were necessarily and reasonably incurred will be a matter for taxation if Mrs Romeo's claim ultimately succeeds.

The costs of the costs application

Mrs Romeo was successful in obtaining an order for costs of the Application as between her and Dr Pennell in the terms sought by her. That is, that the costs of the Application be in the cause of the ultimate proceedings issued following the grant of leave.
Dr Pennell opposed an order being made in the terms sought by Mrs Romeo and ultimately ordered. He was unsuccessful in his argument that Mrs Romeo should pay his costs of the Application.
In the circumstances, there is no reason, in my view, why the costs of the costs application should not follow the event and be borne by Dr Pennell. As such, the appropriate order as to costs in respect of the costs application is that Dr Pennell pay Mrs Romeo's costs.

Conclusion and orders

For the reasons stated:
1.The appeal should be and is allowed.
2.It is not necessary for me to determine the appropriate order as to the costs of the Application.
3.If I am wrong about that, I find that the order made by Deputy Registrar Hewitt to the effect that that the costs of the Application be costs in the cause of CIV 3065 of 2020 should and does stand.
4.The order of Deputy Registrar Hewitt that Mrs Romeo pay Dr Pennell's costs of the costs application (the costs from 6 May 2020) should be and is set aside and the following order made:
The first respondent pay the applicant's costs of the costs application heard on 27 August 2020.
I will hear from the parties in relation to the costs of the appeal.
Subject to hearing from the parties, I see no reason to depart from the usual course that the costs of the appeal should follow the event and, Dr Pennell, having unsuccessfully opposed the appeal, should pay Mrs Romeo's costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
26 MAY 2021