Steve Calcagno v Norma Maree Dent (No. 2)
[2016] NSWDC 20
•04 March 2016
District Court
New South Wales
Medium Neutral Citation: Steve Calcagno v Norma Maree Dent (No. 2) [2016] NSWDC 20 Hearing dates: In chambers on the papers Decision date: 04 March 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Defendant’s application for special costs order dismissed
Catchwords: Costs; whether the plaintiff, who was successful in principal proceedings, lost on a discrete issue warranting a special order for costs Cases Cited: Beoco Ltd v Alpha Laval Co Ltd (1993) EWCA Civ 22
James v Surf Road Nominees Ltd (No. 2) [2005] NSWCA 296Category: Procedural and other rulings Parties: Steve Calcagno (Plaintiff)
Norma Maree Dent (Defendant)Representation: Counsel:
Solicitors:
D Wheelahan QC with M Gilbert (Plaintiff)
P Deakin QC with A Parker (Defendant)
Gerard Malouf & Partners
Sparke Helmore Lawyers
File Number(s): 13/43273 Publication restriction: Nil
Judgment FOR DEFENDANT’S APPLICATION FOR SPECIAL COSTS ORDER
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On 18 December 2015, I delivered judgment in the principal matter. I ordered that the defendant pay the plaintiff’s costs of the proceedings and granted liberty to the parties to apply for any special costs order.
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On 23 December 2015, I was advised by letter from the defendant’s solicitors that they were instructed to apply for a special costs order, and on 18 January 2016, I directed that the application be dealt with by way of written submissions. A timetable was set and submissions received from both the defendant and the plaintiff.
The defendant’s submissions
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The defendant submitted that the original costs order should be varied and that the appropriate costs order should be that the defendant pay 50% of the plaintiff’s costs in the cause. The basis of the application was that the plaintiff had pleaded and relied on, as a particular of the defendant’s negligence, an assertion that the defendant had her left hand blinker turned on, and turned to the right contrary to same. Further, the plaintiff pursued that allegation despite having no evidence to establish it. Finally, the plaintiff succeeded on a case not pleaded until the first day of the hearing.
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The defendant submitted that whilst the usual rule is that costs follow the event, that had been interpreted as an “elastic concept”. The defendant submitted that the defendant was forced to defend the allegation referred to above, by engaging liability experts, obtaining subpoena records and conferencing with witnesses. It was submitted that the plaintiff was wholly unsuccessful on this allegation as no evidence was presented to support the fact. The plaintiff, in fact, had no recollection of the accident.
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It was submitted by the defendant that the allegation should never have been made and was therefore unreasonably pursued. As it constituted a disputed question of fact or law, the party pursuing it should be subject of an adverse costs order, relying on James v Surf Road Nominees Ltd (No. 2) [2005] NSWCA 296 at [34].
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A further submission was made that the plaintiff’s ultimate success in the action derived primarily from the allegation first raised in his Amended Statement of Claim, namely, that the defendant failed to look to the rear for overtaking vehicles before commencing her turn. It was therefore appropriate for the defendant to have her costs up until the date of the amendment, unless it could be established that the action would have been “vigorously resisted”, regardless of the amendment (relying on Beoco Ltd v Alfa Laval Co Ltd [1993] EWCA Civ 22). As the defendant at all times conceded that she did not consult her internal or external mirrors in the immediate moments before impact, the resulting preparation and trial would have been therefore substantially shorter and settlement more likely. In those circumstances, it was submitted that the defendant should be ordered to pay 50% of the plaintiff’s costs.
Plaintiff’s submissions in reply
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The plaintiff submitted that the contention by the defendant that the plaintiff unreasonably pursued the allegation as to the defendant’s left blinker being activated was not correct. It was submitted that the allegation that the defendant activated her left blinker did not form part of the plaintiff’s case.
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The plaintiff submitted that the plaintiff’s case was not opened by learned Queen’s Counsel on that basis, and was only raised by learned Queen’s Counsel for the defendant. Further, in debate as to whether leave to amend his Statement of Claim should be granted to the plaintiff, learned Queen’s Counsel for the defendant informed the court that the defendant did not need, or apply for, an adjournment of the proceedings. None of the evidence of the plaintiff was taken up with the allegation of the defendant using her left blinker and therefore it was submitted that the issue did not form any part of the plaintiff’s case, nor did it prolong the trial.
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It was submitted that the facts of the motor vehicle accident were well known to the defendant before the commencement of trial, and the defendant “vigorously resisted” the plaintiff’s action at all times, including after the amendments were made, also relying on Beoco Ltd v Alpha Laval Co Ltd, supra.
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It was submitted that there were no additional costs incurred by the defendant in defending this allegation and that the Court of Appeal in James v Surf Road Nominees Ltd (No. 2), supra, relied on by the defendant, had made it clear that there was a distinction between cases which involved clearly discrete issues for determination, and those in which all issues are inseparable.
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Finally, the plaintiff submitted that the issue of the left blinker was a complete non‑issue in the proceedings, and not a discrete issue which required the time and consideration of the court. Therefore, the application should be dismissed.
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The plaintiff submitted further that the defendant should pay his costs of this application on an indemnity basis.
Determination
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I am not persuaded that the allegation pleaded by the plaintiff that the defendant had her left blinker on and turned contrary to same, was a discrete issue in the proceedings pursued by the plaintiff. It was not a matter that was referred to by learned Queen’s Counsel for the plaintiff during his opening and formed no part of the evidence. Nor was that allegation a subject for expert evidence in the trial.
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Upon leave being granted to the plaintiff to amend the particulars upon which he relied, the defendant did not seek an adjournment when given the opportunity to do so. Rather, the trial was fought on all issues which were inseparable, and ultimately the plaintiff was successful in establishing negligence by the defendant in the driving, management and control of her motor vehicle.
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This was not a matter where the plaintiff was making separate claims for different relief. Rather, the allegation was but one of the particulars relied on by the plaintiff to establish breach by the defendant of her duty of care. It is never incumbent on a plaintiff in a claim for damages for personal injuries to make good every particular of such breach of duty. Rather, any plaintiff has to establish, on the evidence, questions of breach of duty and causation, pursuant to Pt 1A of the Civil Liability Act 2002.
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I am also not persuaded that the late amendment for which leave was granted substantially altered the case that the defendant had to meet. Indeed, learned Queen’s Counsel for the defendant indicated during debate on the question of leave that he would not require an adjournment if leave was granted, and no adjournment was sought when leave was granted.
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I am therefore not persuaded that there are circumstances which warrant the court making anything other than the usual order, namely, that the costs follow the event.
Orders
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I therefore make the following orders:
The defendant’s application for a special order as to costs is dismissed.
The defendant is to pay the plaintiff’s costs of the application on an ordinary basis.
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Decision last updated: 04 March 2016
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