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Roth v RTA

Roth v RTA

Case [2009] NSWSC 295 23 April 2009

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CITATION: ROTH v RTA & ORS [2009] NSWSC 295

HEARING DATE(S): Tuesday 28 October 2008

JUDGMENT DATE :
23 April 2009

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: The application on behalf of the compulsory insurer and the RTA for costs against Mrs Roth in District Court proceedings Nos 3557/03 and 3558/03 should be dismissed.
In relation to the application for costs of this application for costs, I order that each party pay her/its own costs.

CATCHWORDS: PROCEDURE – costs – jurisdiction – where multiple proceedings - whether costs order should be made against the plaintiff as a non-party to separate proceedings – consideration of UCPR rule 42.3 – application against the plaintiff for costs dismissed – departing from the general rule – unusual case - each party to pay own costs

LEGISLATION CITED: Civil Procedure Act 2005
Interpretation Act 1987
Supreme Court Act 1970
Uniform Civil Procedure Rules

CASES CITED: Garnett v Bradley (1878) 3 AC 944
Knight v FP Special Assets Limited (1992) 174 CLR 178
Law Society of New South Wales v Jackson (1981) 1 NSWLR 630
O’Halloran v Roth [2008] NSWCA 65
Re Bauhaus Pyrmont Pty Limited (in liq) [2006] NSWSC 879
Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited & Ors [2008] NSWCA 283
Petrie v Linsley (1995) 21 MVR 413
Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198
Roth v RTA & Ors [2007] NSWSC 128
Van Eeden v Henry [2005] NSWCA 14
Wentworth v Wentworth (2001) 52 NSWLR 602

PARTIES: ROTH, Maria v
RTA & ORS

FILE NUMBER(S): SC No 20256 of 2005

COUNSEL: Roth (in her capacity as plainitff in Supreme Court proceedings no 20256/05): B M J Toomey QC/M L Holz
Roth (in her capacity as cross defendant in District Court proceedings nos 3557/03, 3558/03 and 5559/03): K P Rewell SC
O'Halloran: B Kelleher

SOLICITORS: Roth (in her capacity as plainitff in Supreme Court proceedings no 20256/05): Matthews Dooley Gibson
Roth (in her capacity as cross defendant in District Court proceedings nos 3557/03, 3558/03 and 5559/03): Tress Cox
O'Halloran: Hunt & Hunt

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

THURSDAY 23 APRIL 2009

No 20256 of 2005

MARIA ROTH v THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES & ORS

JUDGMENT
(On application for costs)

HIS HONOUR:
Introduction

1 In these proceedings (No 20256 of 2005) brought by Maria Roth against the Roads and Traffic Authority of New South Wales (“RTA”), Wollondilly Shire Council and the third defendant, Mr Michael Thomas O’Halloran, judgment was given by me on 9 March 2007: Roth v RTA & Ors [2007] NSWSC 128. The hearing of those proceedings was a hearing on liability only as between Ms Roth, as plaintiff, and Mr O’Halloran, as defendant, the proceedings as against the RTA and the Council having been terminated.

2 In my judgment of 9 March 2007, I determined that the plaintiff was 60% responsible for the accident and the…

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.

Continue reading Roth v RTA

Details

AGLC: Roth v RTA [2009] NSWSC 295
Case: [2009] NSWSC 295
Decision Date: 23 April 2009

CaseChat Overview and Summary

In the case of Roth v RTA, the plaintiff sought to challenge an order made in separate proceedings between the defendant and a third party. The nature of the dispute involved the imposition of costs, the jurisdiction of the court, and the applicability of the Uniform Civil Procedure Rules (UCPR) rule 42.3. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether it had the authority to make a costs order against the plaintiff, who was not a party to the separate proceedings, and whether it was appropriate to make such an order in light of the principles set out in the UCPR. Specifically, the court had to consider whether departing from the general rule that each party bears their own costs was warranted in this unusual situation.

The court found that, while it generally has the jurisdiction to make costs orders against non-parties in certain circumstances, this case did not warrant such an order. The court emphasised the importance of adhering to the general rule that each party bears their own costs, and considered the factors outlined in the UCPR. The court held that it was not appropriate to make a costs order against the plaintiff in this instance, as it would be departing from the general rule without sufficient justification. As a result, the application for costs against the plaintiff was dismissed.

The court ordered that each party bear their own costs in relation to the application. This outcome reflects the court's commitment to the general principle that each party should bear their own costs, and its reluctance to depart from this principle without strong justification. The decision highlights the importance of carefully considering the circumstances of each case and the principles set out in the UCPR when making costs orders.

Orders