Stone v Kennedy Plumbing Services (Vic) Pty Ltd (No. 2)

[2020] VCC 1872

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-01070

NATHAN STONE	Plaintiff
v
KENNEDY PLUMBING SERVICES (VIC) PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne (via ZOOM)
DATE OF HEARING:	The parties provided written submissions to the Court on 30 October and 13 November 2020
DATE OF RULING:	4 December 2020
CASE MAY BE CITED AS:	Stone v Kennedy Plumbing Services (Vic) Pty Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1872

REASONS FOR JUDGMENT
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Subject:  Costs             
Catchwords:             Application for costs              
Legislation Cited:     County Court Act 1958 (Vic)

Cases Cited:Transport Accident Commission v Murdoch [2020] VSCA 98; Taylor v Pace Developments Ltd [1991] BCC 406

Ruling:  No orders as to costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr L Allen	Shine Lawyers
For the Defendant	Mr R Stanley	Lander & Rogers

HIS HONOUR:

1       On 16 October 2020, I delivered my written reasons for judgment (“the principal reasons”) in this matter.  I concluded that the plaintiff should be granted an extension of the period of limitation in which to commence a common law proceeding against the defendant.

2       Due to the vagaries of conducting proceedings via Zoom, the parties did not have access to the principal reasons when the matter was listed on 16 October 2020.  Instead, I came onto the “virtual Bench” and informed the parties that they would be provided with the principal reasons by email.  I then indicated what the outcome and order of the Court would be, namely leave to extend the period of limitation.  I then indicated to the parties that in respect to other orders:

“I’ll hear the parties more broadly as to what other orders are sought assuming that the parties are in a position to do that now or whether you would wish to see the written reasons first.”[1]

[1]Transcript 207, Lines 25-28

3       In response to the indication as to the outcome and whether it was then appropriate to deal with other orders, Mr Tobin SC, on behalf of the plaintiff, said that “I think we’re in a position in relation to doing it now”.

4       At the end of a discussion between Counsel for the parties regarding the appropriate order in respect to costs I indicated that, on the material and submissions then presented to me, I considered it appropriate to make “no order as to costs”, unless either party wanted to make further submissions upon consideration of the principal reasons.  The defendant indicated it would accept “no order as to costs”.  There was then a request by the plaintiff to make written submissions.

5       On 30 October 2020, I was provided with the plaintiff’s written submissions on costs.

6       On 13 November 2020, I was provided with the defendant’s written submissions on costs.

7       I have considered and taken into account both the oral and written submissions on costs.  The terminology used herein is as used in the principal reasons and assumes familiarity with those reasons. 

8       The plaintiff seeks an order that the defendant pay his costs of the extension of time application.  Alternatively, he seeks what is submitted is “by far the most common order following a successful extension application” that the costs be in the proceeding.[2]

[2]Plaintiff’s Submissions, paragraph 4

9       The defendant now submits that in circumstances where the plaintiff ‘returns to the table’ to agitate costs then, in descending order, the plaintiff should pay it’s cost; or  the plaintiff should pay the costs of the adjournment of 9 September 2020 and thereafter there be no order as to costs; or there be no order as to costs in its entirety, but that the plaintiff be ordered to pay the defendant’s costs of the written submissions fixed at $969.75.

10      There is no dispute that the Court is vested with a wide discretion in respect to the appropriate order to make[3].  Or as Lloyd LJ said in Taylor v Pace DevelopmentsLtd “There is only one immutable rule in relation to costs, and that is there are no immutable rules”.[4]

[3]County Court Act 1958 s.78A: Rule 63A.02

[4][1991] BCC 406

11      The plaintiff’s principal submission is that the costs of the extension of time application should be ‘costs in the proceeding’.  He says the Court, in this matter, ought to look to do “substantial justice” between the parties on costs.  He next goes a step further and says that the Court should “look to the realities of the persisting litigation when doing so”.

12      The plaintiff is represented by experienced solicitors.  It can be no surprise to him that there may be adverse cost consequences during and at the conclusion of the litigation.  To suggest that the quantum of the claim and that the erosion of the claim is a relevant factor is, in my opinion, an irrelevant consideration, on the facts of this application. 

13      Even if it was relevant, there is insufficient material to form a view as to the quantum of the plaintiff’s claim.  The plaintiff’s claim was confined to a claim for pain and suffering damages.  He must have been alive to the more limited potential of a claim only for pain and suffering damages when he decided to litigate. 

14      Further, he must also have been alive to the fact that in seeking to pursue damages in respect of two discrete causes of action, each of which was out of time, he was always a risk to find himself in the situation in which he now finds himself, namely having incurred costs which may not be recovered, notwithstanding the potential of the claim. 

15      I note the “desktop review” of successful s23A applications as set out in the plaintiff’s submissions.  I note the other cases drawn to my attention.  The short point is that, in the exercise of the discretion in respect to costs, each case turns on its own facts. 

16      The plaintiff places much reliance on the decision in Murdoch[5] and the Judgment at first instance of his Honour Judge Ginnane.  I do not accept the facts of the present case as being analogous with Murdoch.  Firstly, it was a proceeding in which a serious injury application was (successfully) litigated concurrently with the extension of time application.  Secondly, in Murdoch, the plaintiff was advised (correctly) when in time, that his injury would not meet the test of “serious”.  The plaintiff accepted that advice and allowed the limitation period to expire.  Later on, when his condition became “serious”, he in effect changed his mind and sought to pursue common law damages.  That is a different factual scenario to the present case. 

[5]Transport Accident Commission v Murdoch [2020] VSCA 98

17      In the present case, the plaintiff when in time, was not advised that he should not pursue a serious injury application because his shoulder injury was not “serious”.  While it is not exactly clear what advice he was provided when in time as to whether his shoulder injury was likely to be ‘serious’, he was certainly advised he should take steps to preserve his rights while he was in time to do so.  On the material before me, and if I was required to decide the question (which I was not required to do), it is arguable that the shoulder injury was already ‘serious’ when still in time. He makes no criticism of the legal advice provided to him.  He was clearly advised when in time, of steps he should take to “stop the clock”.

18      As will be clear from the principal reasons, I concluded that while getting his shoulder fixed was his “main goal” and was a factor in his decision to let the limitation period expire, I did not accept it as a complete explanation.  I concluded that, knowing of the ability to “stop the clock” and notwithstanding his “main goal”, he made a conscious decision to let the limitation period expire.  I do not accept that it is a similar scenario to Murdoch.

19      The other difference between the present case and Murdoch is that, in the present case, the defendant did raise specific prejudice, which was not a consideration in Murdoch.

20      The short point is that this whole process and costs to each side could have been avoided if the plaintiff had acted when he was still in time.  In circumstances where it was a deliberate decision by him to allow time to expire, in my opinion, in determining the appropriate costs order to make and in attempting to do “substantial justice” between the parties, the appropriate order is “no order as to costs”.  

21      To illustrate the point, if it need illustration, and by reference to the plaintiff’s submissions regarding the need for costs to at least be ordered as costs in the proceeding, so as to give the plaintiff a chance of “achieving a meaningful sum at the conclusion of the litigation”,[6] it could equally be submitted that I should order that the plaintiff pay the defendant’s costs.  In a case where the damages will be “somewhat circumscribed”,[7] it could be argued that the defendant should not be burdened with the payment of costs or indeed bearing its own costs, which may be much greater than the damages to which the plaintiff is entitled.

[6]Plaintiff’s Submissions, paragraph 21

[7]Plaintiff’s Submissions, paragraph 18

22      I appreciate that no order as to costs will impose a burden on the plaintiff.  Equally it imposes a burden on the defendant.  But that burden could have been less and this whole scenario could have been avoided had the plaintiff accepted the advice of his legal advisers to take steps while still in time, to “stop the clock”.  He chose to ignore that advice.

23      The written submissions of the parties do not persuade me to alter my initial view that the appropriate order is ‘no order as to costs’.  The parties consented to a remote hearing and were aware that they would be informed of the decision before receiving the principal reasons.  A subsequent argument regarding costs was always on the cards.  I am not persuaded that I should order that the plaintiff pay the defendant’s costs for provision of the written submissions.[8]  I also note that the adjournment occurred in part because of the actions of the defendant in the related proceeding involving Structural Systems (Construction) Pty Ltd (in which I refused the plaintiff’s application to extend time).  In the circumstances I am also not persuaded that the plaintiff should pay the costs of that adjournment as the defendant now seeks in it’s descending submissions on costs.

[8]Defendant’s Submissions, paragraph 2

24      Accordingly, the formal order is that there be no order as to costs.