Sethi v CGU Workers Compensation (NSW) Limited and QBC Workers Compensation (NSW) Limited

[2005] NSWDDT 38

Dust Diseases Tribunal

of New South Wales

CITATION:	Sethi v CGU Workers Compensation (NSW) Limited and QBC Workers Compensation (NSW) Limited [2005] NSWDDT 38
PARTIES:	Vivek Sethi (plaintiff) CGU Workers Compensation (NSW) Limited (first defendant) QBE Workers Compensation (NSW) Limited
MATTER NUMBER(S):	496 of 2002
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Miscellaneous Matters :- Costs thrown away by adjournment - matter settled - costs after adjournment
DATES OF HEARING:	25 July 2005
EX TEMPORE JUDGMENT DATE:	07/25/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J Sharpe instructed by Turner Freeman FOR DEFENDANT Ms W Strathdee instructed by Edwards Michael Lawyers appeared for the first defendant Mr N Eurelle instructed by McCulloch and Buggy appeared for the second defendant Mr K Pryde (represented the interests of the plaintiff's former solicitors Messrs Keddies)

JUDGMENT:

3

Dust Diseases Tribunal of New South Wales

Matter No DDT496 of 2002

Vivek Sethi

v

CGU Workers Compensation (NSW) Limited

and

QBE Workers Compensation (NSW) Limited

25 July 2005

JUDGMENT

DUCK J

1. This matter was fixed for hearing on 16, 17 and 18 May 2005. On 10 May 2005, the plaintiff having changed solicitors, the new solicitors Turner Freeman approached the Tribunal and made application that the hearing be vacated because at that stage they had no papers with which to undertake the plaintiff's representation. The application was granted and the hearing was adjourned. I said at the time that the costs were to be reserved but that prima facie the defendants were entitled to have any costs thrown away by the adjournment paid by the plaintiff.

2. There was a feature about the proceedings of which I was not aware and that was that on 15 April the plaintiff's former solicitors had made a formal offer of compromise to the defendants to settle the case. On 12 May, that is two days after the hearing was vacated, the matter settled on the terms proposed by the plaintiff's former solicitors. It may well be the fact, as has been submitted by Mr Eurell that the fact of the adjournment may have operated on the minds of the defendant's advisers when considering what to do about the offer of compromise. Nonetheless the offer which had been on foot for about 25 or 26 days at the time the proceedings were adjourned was accepted on the 28th day and the matter was then settled.

3. It seems to me in effect that the result of those things is that all that has been lost are the costs incurred by the actual attendance at the court on the hearing of the application to adjourn. Otherwise subsequent events have caught up with the matter. It seems to me no further costs order is required. What should happen about the costs, it seems to me, is that the plaintiff should pay the defendant's costs of attending the Tribunal on 10 May 2005 when the application for adjournment of the hearing was made. Otherwise, having regard to the fact of the settlement, each party should pay its own costs which were thrown away by the adjournment of the proceedings on that date.

4. Insofar as there are outstanding costs in the District Court nobody presently in court knows a great deal about it. In effect I think it reasonable to say that while no formal abandonment of an application was made the parties' principal concern was to do with the costs thrown away on 10 May 2005. I feel somewhat at a loss being asked to make costs in respect of District Court proceedings which were on foot before the Tribunal was ever engaged. I decline to make any order about the District Court costs and as to the Tribunal costs the order will be as I have announced.

5. I am asked to revisit the question of costs in the District Court. I am told that on 20 September 2002 when a notice of motion was listed and settled on orders being made in accordance with the motion filed, that what was being done on that occasion was the substitution of insurers for named parties. That being so, those costs might properly be ordered to be plaintiff's costs in the cause. Insofar as costs were reserved in respect of the matter before the District Court on 4 October 2002 the plaintiff is content that no party should be ordered to pay those costs. The defendants are willing to proceed on that footing.

6. I direct that there be no costs in respect of that day.

Mr J Sharpe instructed by Turner Freeman appeared for the plaintiff .
Ms W Strathdee instructed by Edwards Michael Lawyers appeared for the first defendant CGU Insurance Workers Compensation (NSW) Limited.

Mr N Eurelle instructed by McCulloch and Buggy appeared for the second defendant QBE Workers Compensation (NSW) Limited.

Mr K Pryde appeared to represent the interests of the Plaintiff’s former solicitors Messrs Keddies.