Stevens v Professional Helicopter Services; Stryker Australia v Professional Helicopter Services

[2020] NSWSC 1874

Supreme Court

New South Wales

Medium Neutral Citation:

Stevens v Professional Helicopter Services; Stryker Australia v Professional Helicopter Services [2020] NSWSC 1874

Hearing dates:

On the papers

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1)   Order 2 of 20 October 2020 is confirmed.

Catchwords:

COSTS – variation to costs order sought by the defendant – resolution of separate question

Legislation Cited:

Civil Aviation (Carriers’ Liability) Act 1959 (Cth)

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:

Stevens v Professional Helicopter Services Pty Ltd; Stryker Australia Pty Ltd v Professional Helicopter Services Pty Ltd [2020] NSWSC 1443

Category:

Costs

Parties:

Jay David Stevens (First Plaintiff)
Stryker Australia Pty Limited (Second Plaintiff)
Professional Helicopter Services Pty Ltd (Defendant)

Representation:

Counsel:
J E Sexton SC (First Plaintiff)
P Morris SC (Second Plaintiff)
D A Lloyd (Defendant)

Solicitors:
Carroll & O’Dea Lawyers (First Plaintiff)
Stiles Lawyers (Second Plaintiff)
GSG Legal (Defendant)

File Number(s):

2019/403399;
2020/15642

Publication restriction:

Nil

Judgment

1. HER HONOUR: On 20 October 2020, the Court determined that any liability in respect of the injuries sustained by the plaintiff arises only under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“CACL”), and is in substitution for any civil liability of the defendant under the general common law: Stevens v Professional Helicopter Services Pty Ltd; Stryker Australia Pty Ltd v Professional Helicopter Services Pty Ltd [2020] NSWSC 1443.

2. An order was made on that day that costs of the notices of motion are to be each party’s costs in the proceedings (“Order 2”).

3. On 3 November 2020, the defendant filed submissions seeking to vary Order 2. The defendant submitted that the order should be substituted and, in its place, an order that the plaintiffs pay the defendant’s costs of the separate determination, on a party/party basis.

4. The defendant submitted that the “answer to the separate question determines conclusively that Mr Stevens’ first cause of action pleaded in the statement of claim […] is unmaintainable and must fail.” It was submitted that Mr Stevens’ primary cause of action had failed, and “his alternative cause of action will now proceed to an assessment of damages, as admitted by the defendant in the defence and written submissions.”

5. Ultimately, the defendant submitted that the plaintiff proceeded with this question being determined separately, and that the defendant had always made admissions to the elements of the cause of action under the CACL. The defendant submitted that, when the plaintiff is successful in recovering damages in the proceedings, the plaintiff would be entitled to costs of the separate determination which is not “a just or fair outcome”.

6. On 10 November 2020, the plaintiff, Stryker Australia Pty Ltd (“Stryker Australia”) submitted that, pursuant to rule 42(1) under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the general rule applies to the determination of separate questions. It was submitted that the notice of motion for a separate determination was filed shortly after proceedings commenced and was consented to by the defendant, and was appropriate in the management of the proceedings. Stryker Australia submitted that the separate determination:

“avoided prosecution and determination of the alternate case which required factual and expert evidence as to liability and detailed evidence as to quantum in circumstances where the damages otherwise available to the injured party, Mr Stephens, would far exceed the statutory cap fixed pursuant to the Civil Aviation (Carriers Liability) Act 1959.”

7. Furthermore, Stryker Australia argued that the separate determination was necessary to obtain clarification of the law, “given that the only relevant authority was an old majority decision in an interstate intermediate appellate court with a strong dissenting judgment.” For the defendant, this determination avoided cost and expense in the conduct of the litigation, and established a “favourable precedent”. Ultimately, the plaintiff submitted that the defendant’s success in the separate determination did not warrant a costs order in its favour.

8. The injured plaintiff, Jay Stevens, filed submissions on 16 November 2020, adopting the submissions made by Stryker Australia on 10 November 2020. The plaintiff stated that the defendant had not admitted liability or identified a figure for such statutory liability, and at this stage of the proceedings it remains an open question whether the defendant “may succeed on the other pleaded issues which remain to be determine in the proceedings”.

Consideration

9. The Notice of Motion filed by the plaintiff for a separate determination represented a sensible step in the proceedings, that one or other party should properly have taken. There was some lack of clarity as to the relevant regime, and it was appropriate – insofar as a decision of a single judge of the Court can – for clarity to be brought to the proceedings.

10. Ultimately, the determination of the separate question will have the effect of limiting the issues to be determined, and limiting the overall costs of the parties. In my view, there is no reason to disadvantage the plaintiff with an adverse costs order for taking a necessary and useful step in the proceedings.

11. The Court has a broad discretionary power to order costs in a matter. Specifically, section 98 of the Civil Procedure Act 2005 (NSW) provides:

98   Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) […]

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount.

[…]

12. Regulation 42.1 of the UCPR provides that:

42.1 General rule that costs follow the event (cf SCR Part 52A, rule 11)

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

13. I have considered the defendant’s submissions seeking to vary the costs order made by this Court, and the plaintiff’s submissions as to this issue. I do not propose to vary the earlier order.

ORDER

14. Accordingly, the order of the Court is:

1. Order 2 of 20 October 2020 is confirmed.

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Decision last updated: 18 December 2020