Sanders v D and L Heavy Haulage Pty Ltd (No 2)
[2015] NSWSC 1119
•11 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: Sanders v D & L Heavy Haulage Pty Ltd (No 2) [2015] NSWSC 1119 Hearing dates: 10 August 2015 Decision date: 11 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The hearing date of 31 August 2015 is vacated.
(2) The matter is listed for directions before the Common Law Registrar at 9:00 am on 14 December 2015.
(3) Each party has liberty to restore the matter to the Common Law Registrar’s list on seven days’ notice to all other parties.
(4) Costs of the motion of 7 August 2015 and costs thrown away by the vacation of the hearing date are the costs in the cause of the defendants.Catchwords: COSTS – vacation of hearing date by consent – whether costs should be reserved – whether costs should be costs in the cause Category: Procedural and other rulings Parties: Jason Sanders (Plaintiff)
D & L Heavy Haulage Pty Ltd (First Defendant)
Darrell Sharman(Second Defendant)
Gillespie Cranes Nominees Pty Ltd (Third Defendant)
Traffic Technologies Limited (Fourth Defendant)
Track Australia Pty Ltd (Fifth Defendant)
Mark O’Keefe (Sixth Defendant)
Mark A O’Keefe Pty Ltd (Seventh Defendant)Representation: Counsel:
Solicitors:
D Campbell SC (Plaintiff)
A J J Renshaw (First and Second Defendants)
T Berberian (Third, Sixth, and Seventh Defendants)
M J Gollan (Fourth Defendant)
C Finn (Fifth Defendant)
RMB Lawyers (Plaintiff)
Hunt & Hunt (First and Second Defendants)
Moray & Agnew (Third, Sixth, and Seventh Defendants)
HWL Ebsworth Lawyers (Fourth Defendant)
Kennedys (Fifth Defendant)
File Number(s): 2012/184390
Judgment
Introduction
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This matter came before me in the Duty List yesterday. At first it appeared to be a hard fought question of whether a trial date of 31 August 2015 should be vacated, in accordance with proposed order one sought in a notice of motion of the plaintiff filed on 7 August 2015. After a period of reflection, all parties agreed that the hearing date should indeed be vacated; that the matter should return to the Registrar’s list for directions on 14 December 2015; and that each party should have liberty to restore the matter to the list before then on reasonable notice to all other parties. The only outstanding question requiring determination by me is the question of costs.
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To state the background with great succinctness, the position of the plaintiff is that he suffered very severe injuries, including a traumatic brain injury, as a result of a motor vehicle collision on 30 May 2009. A second amended statement of claim was filed in this Court on 2 June 2014 against a large number of defendants. The matter was set down for hearing on 31 August 2015 on 12 December 2014.
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As I have said, all parties have now come to the position that that hearing date must be vacated, and that it will be quite some time before the matter will be ready for hearing again. That is on the basis that the condition of the plaintiff has deteriorated, and there will need to be further expert investigations by all parties.
Submissions
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Senior counsel for the plaintiff adopted two positions with regard to costs. His primary position was that costs arising from this (now consent) vacation of the trial date should be reserved.
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His ancillary position was that costs should be costs in the cause.
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Mr Renshaw of counsel (who appeared for the first and second defendants, but made submissions about costs with the consent of all defendants, subject to their right of supplementation) also adopted a primary position and an ancillary position.
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His primary position was to oppose costs being reserved.
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His ancillary position was that the plaintiff should pay not only the costs of the motion, but also the costs of the defendants thrown away by the vacation of the trial date.
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The other defendants were content with those positions of Mr Renshaw, except that Mr Gollan for the fourth defendant submitted that a further alternative would be that costs should be the costs in the cause of the defendants.
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Turning to the first position of the plaintiff, senior counsel submitted that it is possible that the future could inform the past and present, in the sense that further expert exploration could show where the true merits lie of the necessity of the plaintiff coming to court to seek to have the hearing vacated.
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I respectfully reject that submission. To my mind, the parties were in a position to place all relevant material before me as to costs, and there is no reason why I should burden another judicial officer in the future with this question of costs arising from the motion by failing to determine it myself.
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As for the ancillary position of the plaintiff, senior counsel submitted that all that occurred in a nutshell is an unexpected deterioration in the condition of the plaintiff that meant that further expert evidence was essential. He submitted that the ultimate consent position of the defendants demonstrated the correctness of that contention. And he submitted that the question of the deterioration did not truly crystallise until the solicitors for the plaintiff became aware that his employment had been terminated. After that, the solicitors moved promptly.
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For that reason, he submitted that the party or parties that are ultimately unsuccessful on the substantive question should pay the costs of this inevitable interlocutory inconvenience.
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Mr Renshaw submitted that it is the plaintiff who seeks an indulgence; it is for the benefit of the plaintiff alone that the adjournment was sought and is being granted; that the defendants have done nothing that has led to the hearing date being vacated; and that, in all of those circumstances, the defendants should have their costs.
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The submission of Mr Renshaw was supplemented by a submission of Mrs Berberian (who appeared for the third, sixth and seventh defendants) that sought to show that the solicitors for the plaintiff had been dilatory in raising the question of whether the hearing date could truly be maintained. In particular, she submitted that the chronology established by the affidavits read before me shows that the solicitors for the plaintiff did not adequately appraise their opponents, and the Court, at directions hearings and otherwise, of the problems that were developing.
Determination
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Turning first to the submission of Mr Renshaw, there is force in the proposition that the adjournment is being granted to avail the plaintiff. But as I remarked to him during discussion, there is also another interest that is being served; namely, that at the hearing of an important matter, all relevant evidence is available to all parties.
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Turning to the submission of Ms Berberian, again I think there is force in her submission that, with the benefit of hindsight, the solicitors for the plaintiff could have moved more quickly. But one knows from experience that the preparation of litigation is not an exact science, and that the benefit of hindsight is not vouchsafed to one who is engaged in that process.
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Turning finally to the submission of Mr Gollan, on reflection it is the one that commends itself to me. All parties agreed that its effect would be that, whatever the outcome of the substantive dispute, the plaintiff would not have his costs, either of the motion or costs thrown away by the vacation of the hearing date. But if one or more of the defendants were to succeed, they would have those costs. That position seems to me, exercising my discretion as to costs, to strike the right balance in the circumstances that have arisen.
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For those reasons, I make the following orders:
The hearing date of 31 August 2015 is vacated.
The matter is listed for directions before the Common Law Registrar at 9:00 am on 14 December 2015.
Each party has liberty to restore the matter to the Common Law Registrar’s list on seven days’ notice to all other parties.
Costs of the motion of 7 August 2015 and costs thrown away by the vacation of the hearing date are the costs in the cause of the defendants.
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Decision last updated: 14 August 2015
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