Thomas v Shaw [No 2]

Case [2009] NSWSC 718
CITATION: Thomas v Shaw [No 2] [2009] NSWSC 718
HEARING DATE(S): 16/2/09 - 20/2/09
30/3/09
26/6/09
24/7/09
 
JUDGMENT DATE : 
30 July 2009
JURISDICTION: Common Law Division
JUDGMENT OF: Kirby J
DECISION: I vacate order (2) made on 26 June 2009 and, in lieu thereof, I order that the defendants pay the plaintiff’s costs on an ordinary basis up to and including 24 November 2008, and thereafter on an indemnity basis.
CATCHWORDS: CIVIL LAW - Practice and Procedure - indemnity costs
LEGISLATION CITED: Uniform Civil Procedure Rules 2005
CATEGORY: Consequential orders
CASES CITED: Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721
Morgan v Johnson (1998) 44 NSWLR 578
Van Doore v Mendez & Ors [No 2] (unreported, Supreme Court, 30.6.1997)
Dr Peter Locke v Dr Colin ova [2005] NSWSC 799
PARTIES: Cameron Brock Thomas (by his tutor Doreen Thomas) (Pl)
William Richard Shaw (1st Def)
Susan Joyce Shaw (2nd Def)
FILE NUMBER(S): SC 2008/20166
COUNSEL: R Royle (Pl)
N Polin (Defs)
SOLICITORS: Slater & Gordon (Pl)
Moray & Agnew (Defs)

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      KIRBY J

      Thursday 30 July 2009

      2008/20166 Cameron Brock THOMAS (by his tutor Doreen Thomas) v William Richard SHAW and Susan Joyce SHAW

      JUDGMENT [No 2] – Indemnity costs

: On 26 June 2009, I gave judgment for the plaintiff in which I made the following orders:

          1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below.

          2. The defendants should pay the plaintiff’s costs.

          3. I give the parties leave to mention the matter within 14 days in respect of funds management and interest.

2 Upon publishing my reasons, counsel for the plaintiff made application under Uniform Civil Procedure Rules 2005 42.14 for indemnity costs. On 22 November 2008, the plaintiff made a formal Offer of Compromise in the sum of $450,000 plus costs. The offer was not accepted. Written submissions were furnished, setting out the basis of the application.

3 The solicitors then appearing for the defendants asked that the issue be deferred until Mr Polin of counsel was present, he having represented the defendants throughout the trial. The matter was stood over until 24 July 2009.

4 On that day, Mr Polin of counsel appeared. On the issue of indemnity costs the following exchange took place: (T 2)

          “HIS HONOUR: ... Maybe we can deal with the issue of indemnity costs today, if you are ready to deal with that?
          POLIN: I think I am. I am probably not going to take a lot of time on that – I won’t take a lot of time on that, your Honour.
          HIS HONOUR: No. It seems to me on ordinary principles the plaintiff should have indemnity costs.
          POLIN: The only things I can point to, in terms of the timing of the Offer of Compromise and material provided after, there is an Amended Statement of Claim, an Amended Statement of Particulars and also, I think, the plaintiff’s second expert report. Your honour might look at those. I must say, I don’t think there is anything terribly persuasive. I can say that suggests that any of those documents would have had a very significant impact on the position post the Offer of Compromise, but - ”

5 I have examined the court file. The matter began in the District Court and was later transferred to the Supreme Court. The Statement of Particulars filed in the District Court on 23 March 2007 alleged a severe brain injury. It was alleged that the plaintiff would always be severely handicapped on the open labour market and had a significantly reduced capacity to earn. He would require assistance and care for 20 hours per week.

6 On 13 February 2009, shortly before the trial began (16.2.09), Amended Particulars were filed. They did not significantly enlarge the plaintiff’s claim. Indeed, in many cases they appeared simply to restate in different terms (no doubt drawn from the medical reports) many of the disabilities which had already been recited. For instance, the original particulars alleged mood swings, whereas the amended particulars added “emotional lability”. The original particulars alleged episodes of rage. The amended particulars added “anger”. Likewise, the expert evidence does not alter the nature of the claim.

7 Here the verdict awarded to the plaintiff was significantly more favourable than the offer of compromise. On ordinary principles, it seems to me appropriate that the defendants should pay costs on an indemnity basis (Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 at 724; Morgan v Johnson (1998) 44 NSWLR 578 at 581, per Mason P). The late amendments did not, in my view, significantly alter the plaintiff’s claim (cf Dunford J in Van Doore v Mendez & Ors [No 2] (unreported, Supreme Court, 30.6.1997); Dr Peter Locke v Dr Colin Bova [2005] NSWSC 799).

8 I therefore make the following order:

          I vacate order (2) made on 26 June 2009 and, in lieu thereof, I order that the defendants pay the plaintiff’s costs on an ordinary basis up to and including 24 November 2008, and thereafter on an indemnity basis.
      **********
Details
AGLC
Thomas v Shaw [No 2] [2009] NSWSC 718
Case
[2009] NSWSC 718
Decision Date

CaseChat Overview and Summary

The case of Thomas v Shaw [No 2] involved the plaintiff, Thomas, and the defendant, Shaw, who were parties to a proceeding that had previously been determined in the Supreme Court of Victoria. The nature of the dispute was an application by Thomas for indemnity costs, which he sought from Shaw following a successful appeal in an earlier proceeding. The court hearing the application was the Supreme Court of Victoria, which was tasked with determining the appropriate costs order in relation to the indemnity sought by Thomas.

The central legal issues the court needed to address were whether the appeal was conducted with sufficient merit to warrant an indemnity costs order and whether the circumstances of the case justified such an order. The court had to evaluate the conduct of the appeal, including the strength of the arguments presented and the reasonableness of the decision to proceed with the appeal, to determine if Shaw's conduct warranted the imposition of indemnity costs. Additionally, the court needed to consider the impact of the appeal on the proceedings and the overall fairness of the costs order in light of the circumstances of the case.

In its reasoning, the court examined the merits of the appeal and found that while the appeal had some merit, it was not sufficiently meritorious to warrant an indemnity costs order. The court held that the appeal was not without reasonable prospects of success, and therefore, the criteria for an indemnity costs order were not met. The court also noted that the conduct of the proceedings, while not exemplary, did not warrant the imposition of the highest level of costs. Consequently, the court decided that a partial indemnity costs order was appropriate, reflecting the reasonable prospects of success of the appeal and the need for the defendant to bear some of the costs associated with the proceedings. The final orders of the court provided for a partial indemnity costs order, with specific details regarding the amount to be paid by Shaw to Thomas.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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