Searle v Commonwealth of Australia (No.11)

[2024] NSWSC 1623

Supreme Court

New South Wales

Medium Neutral Citation:

Searle v Commonwealth of Australia (No.11) [2024] NSWSC 1623

Hearing dates:

On the papers

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Order that the defendant, the Commonwealth of Australia, to pay the plaintiff’s costs of and incidental to the Notice of Motion filed 12 August 2024.

Catchwords:

COSTS – Party/party – Costs orders in interlocutory proceedings – Defendant to pay the plaintiff’s costs.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Searle v The Commonwealth of Australia [2018] NSWSC 105

Searle v Commonwealth of Australia (No 9) [2023] NSWSC 215

Searle v Commonwealth of Australia (No.10) [2024] NSWSC 1275

Texts Cited:

Not applicable

Category:

Costs

Parties:

Clayton William Searle (P)
Commonwealth of Australia (D)

Representation:

Counsel:
N Kidd SC / D Meyerowitz-Katz (P)
L Gyles SC / S Keizer (D)

Solicitors:
Levitt Robinson Solicitors (P)
McCullough Robertson Lawyers (D)

File Number(s):

2016/45027

Publication restriction:

Not applicable

Judgment

1. On 24 September 2024, I heard and dealt with a Notice of Motion filed by the Commonwealth, seeking rulings with respect to its ability to rely upon various documents which had been produced for the purposes of a hearing of the reference in the matter and, in the alternative, the amendment of its Defence which it had filed.

2. For the reasons which I gave: Searle v Commonwealth of Australia (No.10) [2024] NSWSC 1275, I held that the Commonwealth was not able to rely upon such part of the Statement of Contention which it had served in respect of each claimant by which it raised a failure to mitigate losses on the part of the claimant.

3. In light of the conclusions reached, I formed the view that it was not an appropriate course for the Commonwealth to have leave to file any amended Defence.

4. After the delivery of the ex tempore reasons, at my invitation, the parties conferred and agreed on a set of orders which gave effect to my decision. Those orders were made and the Commonwealth’s Notice of Motion was otherwise dismissed.

5. The parties were given leave to file submissions with respect to costs.

6. This judgment deals with the issue of costs of the Commonwealth’s Notice of Motion filed 12 August 2024.

The Submissions of the Commonwealth

7. The Commonwealth submits that it is appropriate that each party bear their own costs of the Notice of Motion as each party had some measure of success on the hearing of the Motion.

8. The Commonwealth argued that it had been entirely successful on a broader issue, that subject to questions of proper preparation, and thereby procedural fairness, it was open to the Commonwealth to submit that various group members had not mitigated their losses. It also claimed success on an argument about the relevance of group members’ actual earnings. It accepted that the plaintiff had succeeded with respect to the particular sample group members. On that basis, namely that both parties had had a measure of success, it submitted that the proper order was that each party should pay its own costs.

The Submissions of the Plaintiff

9. The plaintiff submitted that the Commonwealth should pay the plaintiff’s costs of the Notice of Motion.

10. The plaintiff submitted that the underlying proceedings out of which the Notice of Motion emerged was the hearing of a reference for the quantification of damages for individual group members for which the Commonwealth had already been found liable. Accordingly, he submitted that, in accordance with the general rule that costs follow the event, to be found in r 42.1 of the Uniform Civil Procedure Rules 2005, the Commonwealth should bear the costs associated with the reference which included any interlocutory issues arising in the course of the reference.

11. Secondly, it submitted that contrary to the Commonwealth’s submissions, the plaintiff had been substantially successful. It submitted that its focus was, and had always been, on the need for any failure to mitigate loss being raised by the Commonwealth to be pleaded as a matter of procedural fairness. The plaintiff pointed to the fact that the Commonwealth had, over a long period, said that it may raise matters including a failure to mitigate loss on the part of group members, but had not done so until a time very close to the hearing fixed by the senior referee.

12. In light of those matters, the plaintiff submitted that the Commonwealth should bear the costs of the Notice of Motion.

Discernment

13. In my view, the appropriate order is that Commonwealth should pay the plaintiff’s costs of the Notice of Motion.

14. The Notice of Motion arose out of the hearing of the reference. The Commonwealth is obliged to pay the costs of the reference because it is a reference dealing with the quantification of damages to which group members are entitled.

15. In the course of that reference, it is open to the Commonwealth to seek an order that if one or more claims of the group members are unreasonably brought, unreasonably maintained or else should be considered in the light of exchanges of offers of compromise or Calderbank offers, then that particular plaintiff may not be entitled to an order for the entirety of their costs.

16. That is not the situation here. The Commonwealth accepts that it brought the Notice of Motion and that, taking its argument at its highest, both it and the plaintiff have been partially successful.

17. Assuming that to be so, then I am persuaded by the plaintiff’s argument that this is an interlocutory incident of the reference hearings, which involved reasonable conduct on the part of the Commonwealth and of the plaintiff.

18. In those circumstances, I am satisfied that there should be no divergence of the costs position from that which would apply in an overall sense, namely that it is the Commonwealth which is responsible for payment of the legal costs of the hearing of the reference, including any interlocutory proceedings, insofar as they may be reasonably brought and contested.

Order

19. I make the following order:

1. Order that the defendant, the Commonwealth of Australia, to pay the plaintiff’s costs of and incidental to the Notice of Motion filed 12 August 2024.

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Decision last updated: 20 December 2024